Citation Nr: 21069519 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 10-47 139A DATE: November 18, 2021 ORDER A 20 percent rating for degenerative joint disease (DJD) of the left ankle and foot as of February 2, 2013, is granted. A rating higher than 20 percent for the Veteran's right ankle and foot DJD is denied. A 20 percent rating, but no higher, for tarsal tunnel syndrome (TTS) of the left ankle and foot as of April 24, 2014, is granted. A 20 percent rating, but no higher, for tarsal tunnel syndrome (TTS) of the right ankle and foot as of April 24, 2014, is granted. FINDINGS OF FACT 1. Resolving any reasonable doubt in favor of the Veteran, his left ankle limitation of motion more closely approximated a marked disability as of February 2, 2013. 2. The Veteran's DJD of the right ankle and foot is assigned a 20 percent rating, which is the maximum schedular rating authorized under Diagnostic Code (DC) 5271. 3. Resolving any reasonable doubt in favor of the Veteran, his bilateral ankle TTS more closely approximates severe incomplete paralysis as of April 24, 2014. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for left ankle and foot DJD as of February 2, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5271. 2. The criteria for a rating higher than 20 percent for right ankle and foot DJD as of April 24, 2014, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5271; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 3. The criteria for a 20 percent rating, but no higher, for TTS of the left ankle and foot as of April 24, 2014, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, DC 8525. 4. The criteria for a 20 percent rating, but no higher, for TTS of the right ankle and foot as of April 24, 2014, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, DC 8525. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1960 to July 1980. He is the recipient of the Combat Infantry Badge and the Vietnamese Cross of Gallantry. The Veteran and his wife testified before the undersigned Veterans Law Judge at a hearing in October 2013; a copy of the transcript is of record. These matters have a long procedural history which includes multiple Board Decisions and multiple Orders of the Court of Appeals for Veterans Claims (Court) enacting Joint Motions for Partial Remand (JMRs) vacating portions of the Board's Decisions regarding the rating of the Veteran's bilateral ankle and foot disabilities. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's left and right ankle and foot have been assigned ratings under DC 5271 and 5010-8525. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. Under the revisions, DC 5271 requires specific limitations of the ankle range of motion. As the Veteran does not particularly meet the limitation ranges throughout the course of his appeal, the Board finds that the old rating criteria is more favorable to the Veteran's claims. Under DC 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. 38 C.F.R. § 4.71a. The maximum rating of 20 percent is warranted where the limitation of motion in the ankle is marked. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Words such as "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. DC 8525 provides the rating criteria for paralysis of the posterior tibial nerve. A 30 percent rating is applicable where there is complete paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; and plantar flexion is impaired. Severe incomplete paralysis warrants a 20 percent disability rating. Moderate or mild incomplete paralysis warrants a 10 percent evaluation. 38 C.F.R. § 4.124a, DC 8525. A note to the Schedule of ratings for Diseases of the Peripheral Nerves indicates that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than complete paralysis. The section also states that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree Left ankle/foot DJD After review of the record, and in considering the record as a whole, the Board finds that the Veteran's left ankle/foot DJD more closely approximates a marked disability, which warrants a 20 percent rating as of February 2, 2013. The Board notes that earlier VA examinations were determined by the Board and/or the Court to be inadequate in the estimation of the Veteran's loss of range of motion during flare-ups. Considering the evidence as a whole, the November 2013 examination submitted by the Veteran established that his left ankle plantar flexion was to 40 degrees and his dorsiflexion was to 5 degrees. The Board finds that this limitation of motion warrants a 20 percent rating. In confirmation of the limitation of motion of his left ankle/foot, the June 2021 VA examination found that his left ankle/foot had a limitation of plantar flexion to 20 degrees and dorsiflexion to 5 degrees. Thus, the Veteran's left ankle limitation of motion more closely approximates a marked limitation as of February 2, 2013. Under DC 5271, a 20 percent rating is the maximum rating assignable; thus, a rating higher than 20 percent is not permitted. Right ankle/foot DJD The Veteran's right ankle/foot DJD is assigned a 20 percent rating under DC 5271. As noted above, this is the maximum rating allowed under DC 5271. As the Veteran has the maximum rating allowed under his applicable DC, there is no legal basis upon which to award a higher rating. The Veteran's claim for such a benefit is consequently without legal merit and must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994). Bilateral ankle/foot TTS At the outset, the Board notes that the period on appeal to the Board regarding the Veteran's bilateral TTS begins April 24, 2014. Thus, that is only period addressed by the Board. Again, the Board has considered the evidence as a whole and reviewed the entire record with the intent to find the outcome most favorable to the Veteran. In this instance, though the VA examinations which indicated the Veteran's bilateral TTS was mild or moderate, the Board finds that considering the Veteran's symptomology as a whole, his left and right ankle/foot TTS more closely approximates severe incomplete paralysis. In so finding, the Board notes that at no time was a nerve study done in conjunction with a VA examination to give an appropriate diagnostic determination on the severity of the Veteran's disability. His testimony on the impact of his condition has been consistent throughout the course of his appeal. He has reported sharp shooting pain, numbness, and tingling which requires the use of a cane and walker for support. His activities are limited and has also been found to have both paresthesias and dysesthesias. Reviewing the totality of the evidence in the light most favorable to the Veteran, the Board finds that a 20 percent rating for his left foot/ankle and a 20 percent rating for his right foot/ankle TTS is warranted. However, even with a generous review of the record, there is no evidence that would be construed to represent that the Veteran's TTS has progressed to be considered as complete paralysis of his left or right ankle/foot. Thus, a rating higher than 20 percent at any time is not supported by the record, including the Veteran's own testimony in 2013. (Continued on the next page) Thus, a 20 percent rating for his left ankle/foot and his right ankle/foot TTS as of April 24, 2014, is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.