Citation Nr: 21069534 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-51 977 DATE: November 18, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for the service-connected left ankle strain is denied. Entitlement to an initial evaluation in excess of 10 percent for the service-connected right ankle strain is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent for the service-connected left foot disability is remanded. FINDING OF FACT The Veteran's left and right ankle disabilities do not result in any ankylosis, malunion, astragalectomy, or marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for a rating in excess of 10 percent for left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from October1965 to February 1969; he also served in the Air Force Reserve and Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was most recently before the Board in December 2018. At that time, the Board remanded the issues on appeal for additional development. Notably, to have VA schedule the Veteran for VA examinations to determine the current severity of his bilateral ankle and left foot disabilities. See June 2021 VA Ankle and Foot Disability Benefit Questionnaires (DBQs). Thus, the requested development has been accomplished and the appeal has returned to the Board for additional appellate review. The Board notes that the issues of entitlement to service connection for low back, right knee, right hip, and sciatic nerve disabilities of the right and left lower extremities were granted by the RO in a September 2021 rating action. That award constitutes a full grant of the disabilities sought, and the appeal with respect to those matters has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Ratings in excess of 10 percent for right and left ankle strains are denied. The Veteran seeks ratings in excess of 10 percent for the service-connected right and left ankle strains. The Veteran's right and left ankle disabilities are rated under DC 5271, which evaluates range of motion in the ankles. A 10 percent rating is assigned for moderate limitation of motion and a 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a; DC 5271. Normal ranges of motion of ankles 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. The Board notes that words such as moderate and marked are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2020). It is noted that during the course of this appeal, VA amended the rating criteria for evaluating the musculoskeletal disabilities under 38 C.F.R. § 4.71a effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). The new regulations changed DC 5271 to further define marked and moderate limitation of motion. Under the new regulations, a 10 percent rating is assigned for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and a 20 percent rating is assigned for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a , DC 5271 (2021). 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. It is worth mentioning that while the revised regulations may only be applied prospectively, the regulations in effect at the time the claim was filed do not specifically define terms such as moderate and marked. As such, the Board is charged with providing equitable and just meanings for them. Here, it would appear that the revised regulations range of motion ranges are reasonable. VA examined the Veteran in October 2013. The Veteran's right ankle demonstrated 30 degree plantar flexion and the examiner noted that painful motion began at 30 degrees. He had dorsiflexion of 10 degrees in the right ankle and painful motion began at 10 degrees. Left ankle plantar flexion was to 20 degrees with painful motion beginning at 20 degrees. He had left ankle dorsiflexion at 15 degrees with painful motion beginning at 15 degrees. He was able to perform repetitive use testing without additional loss of range of motion. It was noted that he had les movement than normal and pain on movement. No instability was found upon examination. VA also examined the Veteran in September 2014. At that examination, the Veteran's right ankle demonstrated 20 degrees in plantar flexion and dorsiflexion even with painful motion and after repetitive-used testing for three (3) repetitions. The Veteran's left ankle demonstrated plantar flexion and dorsiflexion to 25 and 15 degrees, respectively, even after repetitive use testing for three (3) repetitions. The Veteran's left ankle demonstrated 20 degrees of plantar flexion with pain. The Veteran demonstrated functional loss in both ankles in that he had less movement than normal and pain on movement of the ankles. He demonstrated 5/5 strength, bilaterally, and Anterior Drawer and Talar Tilt tests were negative. The examiner noted that the Veteran ambulated with the constant use of a cane, and that he had contributing factors of pain, weakness, fatigability and/or incoordination of both ankles, but no additional limitation of function of the ankles during flare-ups or repeated use over time. VA reexamined the Veteran's ankles in June 2021. On examination of the right and left ankles, the Veteran demonstrated plantar flexion to 30 degrees and dorsiflexion to 10 degrees, bilaterally, with pain on active and passive motion, and weight-bearing. The Veteran's pain in the right and left ankles was noted to have caused functional loss. To this end, the Veteran reported that he had difficulty walking more than ten feet, standing for more than two (2) minutes, was unable to drive or use the stairs; move his foot; or put on shoes and perform some activities of daily living (e.g., grocery shopping) with balance. There was no evidence of ankylosis. The Veteran had positive Anterior Drawer Test and Talar Tilt tests. The Veteran was noted to have necessitated the constant use of a cane for ambulation. Old Regulations The medical evidence shows that the Veteran does not have any ankylosis, malunion, or astragalectomy in the right or left ankles. The October 2013 VA examination showed right ankle plantar flexion to 30 degrees and dorsiflexion to 10 degrees and left ankle plantar flexion to 20 degrees with dorsiflexion to 15 degrees. The September 2014 examination showed that the Veteran's right ankle had dorsiflexion and plantar flexion each to 20 degrees. The Veteran's left ankle demonstrated plantar and dorsiflexion to 25 and 15 degrees, respectively, with pain limiting only plantar flexion to 20 degrees. At the June 2021 examination, the Veteran's right and left ankles had plantar flexion and dorsiflexion to 30 and 10 degrees, respectively. The Veteran constantly necessitated a cane to ambulate. Overall, looking at the Veteran's disability picture of the right and left ankles as a whole, the limitation of range of motion in Veteran's right and left ankles are "moderate" rather than "marked," and do not support a 20 percent rating under DC 5271. The Board has also considered whether a higher rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the Veteran has already received a compensable rating based in part on pain in his right and left ankles. However, the evidence of record does not show that pain, weakness, or other symptoms has effectively functionally limited the plantar flexion bilaterally or dorsiflexion in either ankle to a "marked" degree. For example, the October 2014 examination show that the Veteran's right ankle had 20 degrees of plantar flexion and dorsiflexion without any additional loss of motion due to pain. At that examination, the Veteran's left ankle demonstrated 25 and 15 degrees range of motion with pain limiting only plantar flexion to 20 degrees. The June 2021 examination showed that the Veteran's right and left ankles had dorsiflexion to 10 degrees and plantar flexion to 30 degrees, without any decreased range of motion limited secondary to pain. As such, the overall evidence does not support a finding of "marked" limitation of the right or left ankle, which is required by the 20 percent rating criteria. As such, a higher rating based on additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not warranted for either ankle. Therefore, under the old regulations, after evaluating all evidence, ratings in excess of 10 percent for the right or left ankle disabilities are not warranted. New Regulations Under the new regulations effective beyond February 7, 2021, DC 5271 defines the "marked" limitation of motion required for the 20 percent rating as "less than 5 degrees dorsiflexion or less than 10 degrees forward flexion." Here, the most restrictive range of motion of the ankles do not fall within the range defined as "marked." As a result, such limitation of range of motion will not be deemed as "marked" limitation under DC 5271 under the new regulations. According, ratings in excess of 10 percent for the right and left ankles is not warranted under the new regulations. Other diagnostic codes regarding ankle disabilities have been considered. DC 5270 evaluates ankylosis of the ankle; DC 5272 evaluates ankylosis of the subastragalar or tarsal joint; DC 5273 evaluates malunion of the os calcis or astragalus; and DC 5274 evaluates astragalectomy, or removal of the talus bone. As the evidence does not suggest that the Veteran has the above symptoms or conditions in either ankle, these Diagnostic Codes are not applicable and will not be discussed further. In sum, given that the medical records do not show that Veteran's right or left ankle disability results in any ankylosis, malunion, astragalectomy, or "marked" limitation of motion, under both old and new regulations, ratings in excess of 10 percent for the right and left ankle disabilities are denied. REASONS FOR REMAND A rating in excess of 10 percent for residuals of status-post fracture of the left foot pain is remanded The Veteran seeks an initial 10 percent rating for his service-connected residuals of a status-post fracture of the left foot with pain. The Veteran was afforded VA examinations to assess the severity of his service-connected foot symptoms in October 2014 and June 2021. At these examinations, neither examiner provided responses for all of the rating criteria needed to assess the Veteran's service-connected left foot condition. Specifically, neither examiner provided a response for the section of the examination addressing malunion or nonunion of tarsal or metatarsal bone, which directly pertains to DC 5283, the DC under which the Veteran's left foot disability is evaluated. Thus, the Board finds that a new VA examination is needed in order for the Board to obtain a complete assessment of the Veteran's service-connected left foot symptomatology. The matter is REMANDED for the following action: Schedule the Veteran for a VA foot conditions examination to determine the current severity of his service-connected residuals status-post fracture left foot with pain. The examiner should respond to all sections of the VA examination report (especially addressing the relevance, if any, of the question of whether there is malunion or nonunion of tarsal or metatarsal bones), or provide an explanation as to why any response cannot be given. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.