Citation Nr: 21068476 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-01 481 DATE: November 10, 2021 THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent prior to July 16, 2021 and in excess of 30 percent thereafter for a left ankle sprain. 2. Entitlement to a separate compensable disability rating for left ankle sprain based on instability. REMANDED Entitlement to an initial disability rating in excess of 10 percent prior to July 16, 2021 and in excess of 30 percent thereafter for a left ankle sprain is remanded. Entitlement to a separate compensable disability rating for left ankle sprain based on instability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to July 1986. These matters come to the Board of Veterans' Appeals (Board) from a July 2015 rating decision by the Regional Office (RO) which, in pertinent part, granted service connection for left ankle sprain, evaluated at 10 percent under Diagnostic Code 5271 based on limitation of motion, effective December 3, 2014. In October 2018, the Board remanded the matter for the issuance of a supplemental statement of the case (SSOC). The matter was last before the Board in May 2021 at which time it was remanded in order to afford the Veteran a new VA examination. Subsequent to the May 2021 Board remand, the RO issued a rating decision in August 2021 which increased the Veteran's disability rating for his left ankle disability from 10 percent to 30 percent effective July 16, 2021. Because this increase does not constitute a full grant of benefits sought on appeal, this matter is still before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Although the Board regrets the further delay, an additional remand is necessary in order to comply with the May 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). 1. Entitlement to an initial disability rating in excess of 10 percent prior to July 16, 2021 and in excess of 30 percent thereafter for a left ankle sprain is remanded. 2. Entitlement to a separate compensable disability rating for left ankle sprain based on instability is remanded. The Veteran contends that an increased rating is warranted for his left ankle sprain. The Veteran's left ankle sprain is currently rated at 10 percent under Diagnostic Code 5271, based on limitation of motion, prior to July 16, 2021 and at 30 percent under Diagnostic Code 5270, based on ankylosis of the ankle, from that date. VA treatment records dated in October 2015 reflect that the Veteran reports chronic left ankle sprain with pain and that his left ankle often rolls. In January 2016, he was prescribed a stabilization brace and custom orthotics for his left ankle. A February 2017 VA physical therapy referral shows the Veteran was measured for and instructed on the use of a cane after reporting instability of his ankle and several falls. A May 2019 VA examination report shows that left ankle instability was suspected but stability testing was normal upon examination. However, a June 2019 VA examination report shows that anterior drawer and talar tilt testing were positive for laxity. Thus, in its May 2021 decision, the Board found the evidence of record raised the issue of whether a separate compensable rating is warranted for left ankle instability. Left ankle instability may be rated analogous to knee instability under Diagnostic Code 5257, which provides for a 10 percent evaluation for slight lateral instability, a 20 percent evaluation for moderate lateral instability, and a 30 percent evaluation for severe lateral instability. 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). Diagnostic Code 5257 now provides for a 10 percent evaluation for strain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; a 20 percent evaluation for (1) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (2) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation; and a 30 percent evaluation for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. In May 2021 the Board remanded these issues in order to afford the Veteran a new VA examination to determine the current severity of his left ankle disability, to provide a full description of the disability, and report all signs and symptoms necessary for evaluating the Veteran's disability under both the old and new criteria. The Veteran was afforded a VA ankle examination in July 2021. The Veteran was found to have pain on flare ups which resulted in plantar flexion and dorsiflexion range of motion limited to 0 degrees. Additionally, Ankylosis of the ankle was noted in plantar flexion, less than 30 degrees, and in dorsiflexion, between 0 degrees and 10 degrees. Anterior Drawer and Talar Tilt tests were positive. The examiner found achilles tendonitis with no current symptoms. The examiner also noted a history of instability and indicated the Veteran regularly used braces and boots, and occasionally used a cane. An addendum opinion obtained in August 2021 sought to address whether there were any incomplete or complete ligament tears requiring a brace and/or assistive device. The examiner gave the following response: "The assumption is that the tears were incomplete as they were not surgically addressed and in consideration of the fact that he can still walk. However there is an indication of instability with regard to his ambulation. The Veteran's description 'I usually wear boots for more support but if I'm not looking where I'm walking, it's not stable.' He also stated that he wears a brace on his ankle for support. The instability is echoed in his statement 'The instability has always been a problem, they go out all the time, mostly when I'm not wearing the boots or the ankle braces.'" Based on the findings of the July 2021 VA examination, the RO assigned a 30 percent disability rating effective the date of the examination under Diagnostic Code 5270 for ankylosis of the ankle. However, the RO continued the Veteran's 10 percent disability rating for his left ankle disability prior to July 16, 2021, and denied a separate disability rating for instability of the left ankle. The Board finds that the August 2021 VA addendum opinion does not definitively address the questions of whether the Veteran suffered from an incomplete or complete ligament tear or whether a medical provider prescribes both an assistive device and bracing for ambulation. It is unclear whether the Veteran's injury was in fact an incomplete or complete ligament tear based on the examiner's explanation. Additionally, the examiner seems to be relying on the Veteran's testimony on the use of assistive devices and braces, and not addressing whether these instruments have been prescribed by a medical provider. Therefore, the Board finds that an additional remand is necessary to address these issues. See Stegall, 11 Vet. App. 268 (1998) The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA treatment records. Should such exist, associate them with the claims file. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle sprain, including any associated instability and whether there are incomplete or complete ligament tears requiring a brace and/or assistive device. 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). The examination obtained upon remand should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under both the old and new criteria. Specifically, for the period from February 7, 2021, the examiner should explain whether the Veteran suffers from any incomplete or complete ligament tears, and, if so, whether any braces or assistive devices have been prescribed by a medical provider. Additionally, for the entire period on appeal, the examiner should opine as to whether the Veteran suffered from recurrent subluxation or lateral instability of the ankle, and, if so, whether this condition should be described as slight, moderate, or severe. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on next page.) 3. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.