Citation Nr: 21068063 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-02 205 DATE: November 9, 2021 ORDER Entitlement to a rating of 10 percent, but not higher, for hiatal hernia with GERD, prior to December 12, 2019, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for hiatal hernia with GERD, effective from December 12, 2019, is denied. Entitlement to a rating of 10 percent, but not higher, for nonallopathic lesions of the left fifth and sixth ribs, prior to February 24, 2021, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for nonallopathic lesions of the left fifth and sixth ribs effective from February 24, 2021, is denied. Entitlement to a rating of 10 percent, but not higher, for status post right ankle fracture prior to December 12, 2019, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating of 20 percent, but not higher, from December 12, 2019, for status post right ankle fracture is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to December 12, 2019, the Veteran's service-connected GERD exhibited symptoms of dysphagia, regurgitation, shoulder pain, pyrosis, and substernal pain. 2. From December 12, 2019, the Veteran's GERD did not result in a considerable impairment of the Veteran's health or a severe impairment of the Veteran's health. 3. The Veteran has not had a rib removed. 4. The Veteran's nonallopathic lesions of the left fifth and sixth ribs prior to February 24, 2021 exhibited pain which resulted in lost range of motion. 5. The Veteran's nonallopathic lesions of the left fifth and sixth ribs effective from February 24, 2021, would not be better served by amputation. 6. The Veteran's right ankle disability prior to December 12, 2019, exhibited pain during weight-bearing activities. 7. The Veteran's right ankle disability from December 12, 2019, exhibited marked lost range of motion during a flareup. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 10 percent, but not higher, for hiatal hernia with GERD prior to December 12, 2019, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.2, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7399-7346. 2. The criteria for entitlement to a rating in excess of 10 percent for hiatal hernia with GERD from December 12, 2019, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.2, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7399-7346. 3. The criteria for entitlement to a rating of 10 percent, but not higher, for nonallopathic lesions of the left fifth and sixth ribs prior to February 24, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5297. 4. The criteria for entitlement to a rating in excess of 10 percent for nonallopathic lesions of the left fifth and sixth ribs effective from February 24, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5297. 5. The criteria for entitlement to a rating of 10 percent, but not higher, for status post right ankle fracture prior to December 12, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5271. 6. The criteria for entitlement to a rating of 20 percent, but not higher, from December 12, 2019 for status post right ankle fracture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to September 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA). In January 2019, the case came before the Board. The Board denied entitlement to service connection for bilateral pes planus. The Board also denied entitlement to an effective date prior to November 1, 2013, for the start of payments for disability compensation. Moreover, the Board remanded the Veteran's increased rating claims for additional examinations because these disabilities were last examined in March 2014. Lastly, the Board remanded the Veteran's claim for entitlement to service connection for bilateral cataracts for an additional examination because the Board found the Veteran's March 2014 VA examination inadequate. In August 2020, the RO issued a rating decision that awarded a 10 percent rating for the Veteran's GERD effective from December 12, 2019. In addition, the RO awarded a 10 percent rating for the Veteran's right ankle disability effective from December 12, 2019. Lastly, the RO awarded service connection for the Veteran's bilateral cataracts. Thus, this issue is no longer before the Board. In May 2021, the RO issued a rating decision that awarded a 10 percent rating for the Veteran's nonallopathic lesions, left 5th and 6th ribs effective from February 24, 2021. Increased Rating The Veteran contends that his disabilities warrant increased ratings throughout the course of the appeal. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a compensable evaluation prior to December 12, 2019, and entitlement to an evaluation in excess of 10 percent from December 12, 2019 for GERD with hiatal hernia The Board notes that the Veteran is challenging his initial rating. The Veteran's disability was rated noncompensable prior to December 12, 2019, according to Diagnostic Code 7399-7346. Subsequently, the Veteran's rating was increased to 10 percent disabling effective from December 12, 2019. Hyphenated codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Code 7399-7346 reflects that there is no diagnostic code specifically applicable to the Veteran's service-connected GERD, and that the disability has been rated by analogy to hernia hiatal under Diagnostic Code 7346. 38 C.F.R. § 4.20. Under Diagnostic Code 7346, a 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent evaluation, of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent disability rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The Board notes that use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); see also Malone v. Gober, 10 Vet. App. 539 (1997). As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as a hiatal hernia with gastroesophageal reflux disease. As to the Veteran's lay statements, the Board notes that the Veteran stated that he experiences symptoms of pyrosis and regurgitation. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in May 2014. The Veteran reported that the symptoms of heartburn and indigestion began in 1990 and were self-treated until he was seen by a doctor and an endoscopy recommended. The Veteran reported that he takes medication and has been symptomatic intermittently 2 days a week. The Board notes that the VA examiner did not provide any further analysis regarding the symptoms related to the Veteran's gastrointestinal disorder. In December 2019, the Veteran attended an additional VA examination. The Veteran reported frequent heart burn requiring antacids. The Veteran stated that this contributes "to insomnia, occasional vomit-burps with large meals or acidic foods, and also esophageal spasm." Upon examination, the examiner indicated that the Veteran's disability requires continuous medication. The examiner indicated that the Veteran exhibits dysphagia, pyrosis, reflux, regurgitation, and substernal and shoulder pain. The examiner indicated that the Veteran experiences sleep disturbances more than 4 times a year. The examiner indicated that the Veteran also experiences nausea. The Board finds the May 2014 VA examination to be inadequate because the examiner did not provide an adequate analysis of the symptoms related to this disability. Therefore, the Board will only consider the results of the December 2019 VA examination because this examination report included a detailed description of the Veteran's symptomology. The Board has also reviewed the Veteran's medical treatment records. After a review of the Veteran's records, the Board finds that the Veteran's records do not show symptoms that are more severe than what was reported at his VA examinations. The Board acknowledges the Veteran's contention that his disability warrants consideration of Diagnostic Code 7307; however, the Board finds this Diagnostic Code is inapplicable to the Veteran's appeal. The Board acknowledges that the Veteran has been diagnosed with gastritis and this Diagnostic Code is used to evaluate that disorder, but the Veteran is not service connected for this disability. In addition, the Board finds that the symptoms related to the Veteran's hiatal hernia with GERD are separate and distinct from gastritis and do not warrant consideration under Diagnostic Code 7307. Moreover, Diagnostic Code 7346 directly addresses the symptoms related to the Veteran's service-connected hiatal hernia and is the best Diagnostic Code to properly adjudicate the Veteran's claim. Therefore, for the above stated reasons, the Board finds that the evidence of record only supports consideration of Diagnostic Code 7346. In sum, the Board finds that the Veteran's disability prior to December 12, 2019, remained consistent and that an increased rating is warranted. After a review of the record, the Board acknowledges that the Veteran's disability exhibited symptoms of dysphagia, pyrosis, reflux, regurgitation, substernal pain, and shoulder pain. Accordingly, the Board finds that the Veteran's disability is best represented by a 10 percent rating. The Board has considered a rating in excess of 10 percent, but the evidence of record does not show that the Veteran's symptoms resulted in a considerable impairment of health. Moreover, the evidence of record does not show that the Veteran experiences material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's disability meets the criteria for a 10 percent disability rating, but not higher, prior to December 12, 2019. In sum, the Board finds that the Veteran's disability has remained consistent from December 12, 2019, and that an increased rating greater than 10 percent is not warranted. After a review of the record, the evidence of record does not demonstrate that the Veteran's disability resulted in a considerable impairment of his health. In addition, the record also does not show that the Veteran's condition exhibited material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The Board has considered the Veteran's contentions; however, the Veteran's contentions are outweighed by the medical evidence of record that does not show that the Veteran meets the criteria for a rating in excess of 10 percent. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 10 percent for GERD, must be denied. 2. Entitlement to a rating of 10 percent, but not higher, for nonallopathic lesions of the left fifth and sixth ribs prior to February 24, 2021 is granted. 3. Entitlement to a rating in excess of 10 percent for nonallopathic lesions of the left fifth and sixth ribs effective from February 24, 2021. The Board notes that the Veteran is challenging his initial rating. The Veteran's disability was rated as noncompensable according to Diagnostic Code 5297 prior to February 24, 2021. Subsequently, the Veteran's disability was increased to 10 percent disabling effective from February 24, 2021. Under Diagnostic Code 5297, which applies to the removal of ribs, a 10 percent disability rating is warranted if there is a removal of one rib or resection of two or more ribs without regeneration. A 20 percent rating requires removal of two ribs. Removal of three or four ribs warrants a 30 percent rating. A 40 percent rating is assigned for removal of five or six ribs. Removal of more than six ribs warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5297. The Board also finds that the medical evidence of record indicates that Diagnostic Code 5320 is also applicable to the Veteran's appeal. Diagnostic Code 5320 provides evaluations for disability of Muscle Group XX. The functions of these muscles are as follows: postural support of body and extension and lateral movements of the spine. The muscle group includes the spinal muscles: sacrospinalis (erector spinae and its prolongations in thoracic and cervical regions). Disability for the lumbar region under this provision is evaluated as: slight (zero percent), moderate (20 percent), moderately severe (40 percent), and severe (60 percent). 38 C.F.R. § 4.73, Diagnostic Code 5320. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to the joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as nonallopathic lesions of the left 5th and 6th ribs. As to the Veteran's lay statements, the Board acknowledges that the Veteran has reported pain in his rib area. As to the Veteran's wife's lay statements, the Board acknowledges that the Veteran's wife has reported that she observed her husband exhibiting pain and discomfort when he twists. Turning to the medical evidence at hand, the Board notes that the Veteran attended a general medical examination in March 2014. However, the Board notes that the VA examiner did not provide any analysis regarding the Veteran's rib disorder. In December 2019, the Veteran attended a VA muscle injury examination. The Veteran reported "pain, discomfort, ache, affects neck and left shoulder." The Veteran also reported "occasional intercostal muscle spasm, pain can be at the anterior costochondral junctions or posterior facets." Upon examination, the examiner indicated that the Veteran's disability impacts muscle group XX. The examiner then opined that the Veteran experiences occasional loss of power and occasional weakness. In May 2021, the Veteran attended a VA skeletal examination, at which time the Veteran reported experiencing an "achy to sharp pain at ribs lateral to sternum, worse with pressure or flexion." The examiner opined that the Veteran's disability would not be equally well-served by an amputation with prosthesis. The examiner also opined that the Veteran exhibits pain and this disorder has progressed/worsened. The Board has also reviewed the Veteran's medical treatment records. The Board notes that the Veteran's records show that he experiences pain in his rib area. Moreover, on September 26, 2018, the Veteran's records show that the Veteran's ribs exhibited "no abnormalities on inspection, tenderness over the posterior connection of the left fifth and sixth ribs. Range of motion of the ribs laterally is intact without any acute lesions, but there is restriction with articulation posteriorly and anteriorly." In sum, the Board finds that the Veteran's disability has remained consistent and that an increased rating prior to February 24, 2021, is warranted. The Board finds that the overall musculoskeletal function of the left rib and flank area is affected by recurrent pain as a residual of the Veteran's rib instability. In turn, the Board finds that a 10 percent initial rating for residual pain as analogous to one rib removal is therefore warranted. While a rib is not considered a joint in the traditional sense, the Board finds that the rationale underlying the regulations and case law pertaining to rating joints also applies to the Veteran's rib disability. In reaching this determination, the Board reiterates that both the Veteran's disability and the case law and regulations pertaining to the joints relate to disabilities of the musculoskeletal system. 38 C.F.R. § 4.71a. The intent of the schedular rating criteria is to recognize a healed musculoskeletal injury as productive of disability, subject to at the very least a minimally compensable disability rating. 38 C.F.R. § 4.59. Accordingly, the Board finds that the Veteran's residuals of pain over the affected left rib area resulting in painful motion is a functional impairment supporting the grant of the minimum compensable rating, of 10 percent, pursuant to DC 5297. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements). The Board has considered a rating in excess of 10 percent; however, the medical evidence of record does not show that the Veteran's disability is analogous to the removal of two ribs or that he would be equally well-served by the removal of his 5th and 6th left rib. The Board has also considered an increased rating according to Diagnostic Code 5320; however, the medical evidence of record that evaluated the Veteran's pain and lost range of motion does not support a finding that the Veteran's disability is moderate, moderately severe, or severe. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's disability meets the criteria for a 10 percent disability rating, but not higher, prior to February 24, 2021. In sum, the Board further finds that the Veteran's disability has remained consistent and that an increased rating greater than 10 percent from February 24, 2021, is not warranted. After a review of the record, the evidence of record does not demonstrate that the Veteran's disability is analogous to the removal of two ribs or that he would be better served by the removal of his 5th and 6th left rib. The Board has also considered an increased rating under Diagnostic Code 5320; however, the Board finds that the medical evidence of record that evaluated the Veteran's pain and lost range of motion does not support a finding that the Veteran's disability is moderate, moderately severe, or severe. The Board has considered the Veteran's contentions; however, the Veteran's contentions are outweighed by the medical evidence of record that does not show that the Veteran meets the criteria for a rating in excess of 10 percent. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 10 percent for nonallopathic lesions of the left fifth and sixth ribs, must be denied. 4. Entitlement to a rating of 10 percent, but not higher, for status post right ankle fracture prior to December 12, 2019, is granted. 5. Entitlement to a rating of 20 percent, but not higher, from December 12, 2019, for status post right ankle fracture is granted. The Board notes that the Veteran is challenging his initial rating. The Veteran's disability was rated noncompensable prior to December 12, 2019, according to Diagnostic Code 5271. Subsequently, the Veteran's rating was increased to 10 percent disabling effective from December 12, 2019. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is defined as 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. The Board observes that the words "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. During the pendency of this appeal, however, VA amended the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020), effective from February 7, 2021. Diagnostic Code 5271 was affected by this change and the terms marked and moderate were given range of motion limitations. "Marked" means less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. "Moderate" means less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. As an initial matter, the Board finds that the medical evidence of record does not support consideration of any alternate Diagnostic Codes related to the ankle. Thus, the Board will only use Diagnostic Code 5271 to evaluate the severity of the Veteran's ankle disability. As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as residuals status post right ankle fracture. As to the Veteran's lay statements, the Board notes that the Veteran reported that he experiences pain and stiffness in his ankle. The Board further notes that the Veteran experiences pain during weight-bearing activities such as walking, running, and lifting. As to the Veteran's wife's lay statements, the Board notes that the Veteran's wife reported that she observed that her husband exhibits pain in his ankle. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination in May 2014. The Veteran reported that he still has intermittent episodes of discomfort with his right ankle and treats it with pain medication. Upon examination, the examiner indicated that the Veteran exhibited normal range of motion with no objective evidence of painful motion. The examiner indicated that the Veteran had no additional limitation in range of motion after repetitive use testing. Lastly, the examiner indicated that the Veteran did not report flareups. In December 2019, the Veteran attended a VA examination. The Veteran reported that he experiences flare-ups of the right ankle that occur daily. The Veteran stated that he feels discomfort, but occasionally can have several days and nights of pain and ache and stiffness and foot pain. The Veteran stated that the right ankle flare-ups are usually mild, but are occasionally moderate. The Veteran reported right ankle flare-ups that last 2-4 days. The Veteran reported that the right ankle flare-ups are precipitated by impact heavy lifting and also walking on uneven surfaces or stairs. The Veteran reported that the right ankle flare-ups are alleviated by rest, naproxen, elevation and gentle ROM. Upon examination, the Veteran exhibited normal range of motion with no pain noted on examination. The examiner noted that there was objective evidence of localized tenderness or pain on palpitation of the joint. The further examiner indicated that the Veteran exhibited lost range of motion after repetitive testing. The examiner noted that the Veteran exhibited plantar flexion 0 to 35 and dorsiflexion 0 to 15. The examiner also indicated that during flareups the Veteran exhibits dorsiflexion 0 to 5 degrees and plantar flexion 0 to 10 degrees. The Board has also reviewed the Veteran's medical treatment records. The Board finds that the Veteran's records do not show evidence of lost range of motion that is greater than what was recorded at the Veteran's VA examinations. In sum, the Board finds that the Veteran's ankle disability remained consistent and that a rating of 10 percent, but not higher, for the Veteran's right ankle disability, prior to December 12, 2019, is warranted. The evidence of record demonstrates that the Veteran and his wife have credibly reported pain in his right ankle during weight bearing range of motion activities. The Board has considered a rating in excess of 10 percent; however, the evidence of record during this period of the appeal does not show evidence of marked limited motion of the ankle. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's disability meets the criteria for a 10 percent disability rating, but not higher prior to December 12, 2019. In sum, the Board further finds that the Veteran's right ankle disability remained consistent and that a rating of 20 percent, but not higher, for the Veteran's right ankle disability, since December 12, 2019, is warranted. The Board notes that the December 2019 VA examination showed that he experiences frequent right ankle flareups that result in marked lost range of motion. The Board has also considered a higher rating; however, the Veteran is now in receipt of the maximum schedular rating under this Diagnostic Code and the Veteran's ankle does not exhibit signs of ankylosis during a flareup. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's disability meets the criteria for a 20 percent disability rating, but not higher, from December 12, 2019. Extra Considerations Lastly, the Board has considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim, and the record does not show that his disabilities prevent the Veteran from securing or following a substantially gainful occupation at this time. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.