Citation Nr: 21068586 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-19 503 DATE: November 10, 2021 ORDER Entitlement to the restoration of a 20 percent rating for service-connected right ankle sprain is granted. FINDING OF FACT The probative evidence of record does not make it reasonably certain that the noted improvement of the Veteran's right ankle will be maintained under the ordinary conditions of life. CONCLUSION OF LAW Entitlement to the restoration of a 20 percent rating for service-connected right ankle sprain is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from April 1992 to March 1996. The Veteran's appeal originates from an August 2015 rating decision effectuating the reduction of the Veteran's rating from 20 percent to 10 percent for her service-connected right ankle sprain. In February 2020, the Veteran testified before the undersigned Veteran's Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran's claim was most recently before the Board in January 2021 wherein the Board denied the Veteran's claim to restore the 20 percent rating for her right ankle. Thereafter, the Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). Through an August 2021 Joint Motion for Remand (JMR), the Veteran's claim was remanded to the Board for additional action consistent with the JMR. In August 2021, the Veteran was informed of the opportunity to wait 90 days to submit additional information in connection with her claim. In October 2021, she waived that 90-day period. Ratings Reductions The propriety of the reduction for the Veteran's right ankle sprain, from 20 percent to 10 percent The Veteran contends that her right ankle disability should not have been reduced from 20 to 10 percent. Through the JMR, the Veteran asserts that the Board did not adequately address the reduction of the Veteran's ankle, as opposed to whether the rating is justified under a "increased rating" analysis. Procedural History By way of history, the Veteran was granted service connection for her right ankle sprain effective March 11, 1996 and the rating was increased to 20 percent effective October 21, 1997. Through an August 2015 rating decision, the Veteran's rating was reduced to 10 percent effective November 1, 2015. The Veteran requested a hearing on the proposal to reduce her rating which was conducted. Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Proposing a reduction and allowing a hearing on the reduction are both required and were accomplished in this case. For reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Under § 3.344(a), the examination that is used to reduce a rating must be as "full and complete" as the examination that is used to grant a rating. Here both the July 1998 and September 2014 examinations were specific to the Veteran's right ankle function. Therefore, the Board finds that the examination leading to the rating decrease was at least as "full and complete" as the examination that assigned the 20 percent rating. Given the above, the Board finds that the procedural safeguards for the Veteran's reduction was properly accomplished. However, the propriety of the rating is discussed below. Legal Framework A reduction in disability evaluation is warranted if the evidence shows "that an improvement in disability has actually occurred" and that the "improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 421 (1993); see 38 C.F.R. § 3.344. A disability evaluation that has continued for a period of five or more years cannot be reduced without evidence of sustained material improvement under the ordinary conditions of life as shown by full and complete examinations. 38 C.F.R. § 3.344(a); Brown, 5 Vet.App. at 419. It is not enough that "material improvement in the physical or mental condition is clearly reflected," consideration must also be given to "whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life." Brown, 5 Vet.App. at 419. As for the propriety of the rating itself, Diagnostic Code 5271 governs the rating criteria for the Veteran's ankle sprain. Ratings under this code are available at 10 percent for moderate limited motion and 20 percent for marked limited motion. The terms "moderate" and "marked" are not defined under VA regulations as in effect at the time of this claim. Those terms also do not appear to have a generally accepted medical definition. 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 terminology such as "moderate" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked. 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. 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. Evidence At the Veteran's July 1998 VA examination, the Veteran reported that her ankle was painful when she used it and it was "weak." She felt like it would give away at times, although it had not. She reported mild swelling bilaterally and that she felt popping around her ankle at times. She denied weakness, but said she limped at times. Upon range of motion testing, her dorsiflexion was 25-30 degrees and plantar flexion was 30 degrees. There was no swelling and mild tenderness. She had +1/+2 laxity anteriorly. Inversion was 10 degrees and eversion was 15 degrees. Strength and fatigability were within normal limits, her gait was not antalgic, and there was slightly increased pain with repetitive use. Concurrent medical evidence, as referenced in the July 1998 rating decision, includes evidence of laxity, instability, and near falls. The July 1998 rating decision that assigned the 20 percent rating found that there was "marked" limitation in motion. However, in reviewing its reasoning, the RO did not find that there was a such a limitation in motion. Rather, it found that the Veteran's dorsiflexion was hypermobile and the Veteran had laxity, thus resulting in her complaints of falls. The Board notes that neither of these considerations are included in the description of a 20 percent rating or any other rating for ankle conditions. Even so, due to the Veteran's right ankle causing her to repeatedly fall, she was assigned a 20 percent rating. At the Veteran's September 2014 VA examination, the Veteran reported sharp shooting pain that intermittently started in the ankle, but was more in the medial thigh; intermittent pain when her ankle popped; and the ankle gave way, however, she couldn't quantitate the average number over a course of a month, and just stated it varies. On range of motion testing, the Veteran's right plantar motion was full (45 degrees) and her dorsiflexion was 10 degrees (20 degrees is full). Except for tenderness, the remainder of the objective examination was within normal limits. The examiner stated that while the Veteran's dorsiflexion was reduced, it was not so greatly reduced that her gait would be impacted. An August 2016 VA examination was essentially identical to the September 2014 examination. Turning to the Veteran's treatment records, the Veteran did seek treatment referencing right ankle pain noting similar symptoms. However, the records contain no range of motion testing using a goniometer that might yield meaningful measurements for the Board to consider. There are various lay statements in the record, including from the Veteran's testimony, that state that the Veteran's ankle is unstable, lax, and pops and that she has fallen or very nearly so. The Veteran asserts she is less prone to falls because she guards her ankle. Analysis As this is not a claim for an increased rating, the Board must consider the Veteran's claim under a reduction framework. As explained earlier, a reduction in disability evaluation is warranted if the evidence shows "that an improvement in disability has actually occurred" and that the "improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 421 (1993); see 38 C.F.R. § 3.344. A disability evaluation that has continued for a period of five or more years cannot be reduced without evidence of sustained material improvement under the ordinary conditions of life as shown by full and complete examinations. 38 C.F.R. § 3.344(a); Brown, 5 Vet.App. at 419. It is not enough that "material improvement in the physical or mental condition is clearly reflected," consideration must also be given to "whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life." Brown, 5 Vet.App. at 419. At the time of the Veteran's rating in 1998, there was no limitation in motion. Instead, there was hyper-flexibility and evidence of laxity. These symptoms caused the Veteran to complain of falls. Notably, no "marked" limitation in motion was found; nevertheless, a 20 percent rating was assigned because of the Veteran's fall risk. The recent medical evidence does not contain objective evidence of hyper-flexibility and laxity. However, the Veteran has continued to complain of falls, to include when she applied for an increased rating in April 2011. Further, while there does not appear to be significnt treatment for falls, the Board finds the Veteran competent and credible in her reports that she has subjective feelings of weakness and guards herself against falls. Further, the Board finds it plausible that if the Veteran were experiencing the same symptoms for almost 20 years, she could consider them normal such that she wouldn't seek treatment. Thus, considering the above, the Board finds that the evidence does not make it reasonably certain that the noted improvement of the Veteran's right ankle will be maintained under the ordinary conditions of life." Brown, 5 Vet.App. at 419. While some improvement in range of motion and stability is noted, that noted improvement has not affected the Veteran's reports of falling. Therefore, the criteria for restoring the Veteran's 20 percent rating has been met. For the foregoing reasons, the preponderance of the evidence is for the restoration of a 20 percent rating for the Veteran's right ankle. 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. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.