Citation Nr: 21069710 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-10 806 DATE: November 19, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right ankle disability is denied. FINDING OF FACT The Veteran's right ankle disability does not result in ankylosis; he is in receipt of the maximum schedular rating for limited motion of the ankle. CONCLUSION OF LAW The criteria for entitlement to rating in excess of 20 percent for a right ankle disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to September 1974 with additional service in the Navy Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. In August 2018 and April 2021, the Board remanded the issue on appeal for further development. 1. Entitlement to a rating in excess of 20 percent for a right ankle disability The Veteran contends that he is entitled to a higher disability rating for his service-connected right ankle disability because his symptoms are more severe than contemplated by his currently assigned rating. The Veteran's right ankle disability is currently rated 20 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271, which pertain to limitation of motion of the ankle. Under this diagnostic code, a maximum 20 percent rating is assigned for marked limitation of motion. Normal range of ankle motion is defined as dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71a, Plate II. At his Board hearing, the Veteran testified that he is in a lot of pain due to his right ankle and that he cannot stand for a long period of time. The Veteran stated that he is unable to walk long distances and that he is on much stronger medication for his chronic ankle pain. The Veteran testified that his right ankle is not stable, and that it gives out and locks in place. The Veteran expressed that he uses shoe inserts for his ankle. In a February 2011 VA treatment note, the Veteran stated that his ankle went out. The Veteran expressed that he is required to use his cane. The examiner reported that a right ankle brace was present that he was unable to dorsiflex his right foot. The examiner noted that the Veteran performs plantar flexion without difficulty and has no problems with internal and external rotation. In a March 2011 private treatment note from R. Russell, DPM, the Veteran reported pain in the right foot, on the dorsal lateral aspect in the area of the sinus tarsi, occurring for years and getting progressively worse over time. The examiner noted that there was limited range of motion and crepitus on range of motion of the sinus tarsi and subtalar joint. The examiner noted that neurologically, sensations were intact. Reflexes and muscle strength were normal. In a November 2011 VA treatment note, the Veteran reported right ankle pain. The Veteran indicated that he was seen in June for a series of three injections into the right ankle and was given cream. The Veteran reported having pain. The Veteran was afforded a VA examination in July 2012. The Veteran expressed that his ankle is more painful when standing, walking, and sitting. The Veteran indicated that he wears a boot that supports his ankles. The Veteran reports flare-ups that impact his walking, going up and down stairs, standing prolonged periods of time, and prolonged sitting. The Veteran's right ankle plantar flexion and dorsiflexion were 17 to 20 degrees with pain on motion testing. The examiner noted that the Veteran has additional limitation in range of motion following repetitive-use testing and has functional loss and/or impairment of the ankle. The examiner indicated that the Veteran has less movement than normal and pain on movement. The Veteran was reported to have localized tenderness or pain on palpation. The examiner noted that the Veteran's right ankle demonstrated laxity compared with the opposite side. The examiner reported that there was no ankylosis of the ankle, subtalar and/or tarsal joint. The examiner noted that the Veteran does not have "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or has had a talectomy (astragalectomy). The Veteran was noted to wear support boots and TED hose on a regular basis. In a February 2013 private treatment record from Dr. Bell, the Veteran was noted to have right ankle pain and unable to stand or walk for more than 15 minutes. In a May 2013 VA treatment record, the Veteran was noted to have chronic ankle pain and uses a cane to aide with ambulation and prevent falls. The Veteran was afforded a VA examination in June 2016. The Veteran expressed that he has sharp pain to the top of his ankle and swelling every day, that increases with prolonged standing. The Veteran did not report flare-ups. The Veteran reported having functional loss or impairment and indicated that he has pain with prolonged standing. The Veteran's right ankle plantar flexion was from 0 to 30 degrees and dorsiflexion was from 0 to 15 degrees. Pain was noted on the examination and causes functional loss. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner noted that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time. The Veteran has localized tenderness or pain on palpation. The examiner reported mild tenderness to medial and lateral aspect of the ankle. Muscle strength was normal. The examiner noted that there was no ankylosis. The examiner noted that ankle instability or dislocation was not suspected. The examiner reported that the Veteran does not have "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or has had a talectomy (astragalectomy). The examiner reported that the Veteran uses a cane on a regular basis for his balance. The Veteran was afforded a VA examination in September 2016. The Veteran expressed that the level of him standing up is worse and that he needs a cane to keep himself mobilized. The Veteran did not report flare-ups or functional loss or impairment. The Veteran's right ankle plantar flexion was from 0 to 35 degrees and dorsiflexion was from 0 to 15 degrees. Pain was noted on the examination and causes functional loss. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner noted that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time. The Veteran has localized tenderness or pain on palpation. The examiner reported mild lateral pain likely due to claimed condition. Muscle strength was normal. Ankle instability or dislocation was not suspected. The examiner noted that there was no ankylosis. The examiner reported that the Veteran does not have "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or has had a talectomy (astragalectomy). In a November 2016 Disability Benefits Questionnaire, the Veteran expressed that his chronic pain has become worse. The Veteran's diagnoses were reported as achilles tendon enthesopathy and right medial malleolus fracture. The Veteran reported flare-ups of the ankle and stated that he has pain intermittently with edema which improves with a shoe insert. The Veteran did not report having functional loss or impairment. The Veteran's right ankle plantar flexion was from 0 to 25 degrees and dorsiflexion was from 0 to 15 degrees. Pain was noted on the examination on rest and non-movement. There was evidence of pain with weight-bearing. The Veteran was not able to perform repetitive use testing. The examiner noted that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time. Plantar flexion would be from 0 to 25 degrees and dorsiflexion from 0 to 15 degrees. The examiner noted that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with flare-ups. The Veteran has localized tenderness or pain on palpation. The examiner noted that the Veteran has lateral right ankle with edema and significant pain with palpation. Muscle strength was normal. Right ankle instability or dislocation was not suspected. The examiner noted that there was no ankylosis. The examiner reported that the Veteran does not have "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or has had a talectomy (astragalectomy). The examiner reported that the Veteran uses a cane on a regular basis for his balance. The examiner noted a large enthesophyte at the insertion of the achilles tendon and mild irregularity of the medial malleolus articular surface. The Veteran was afforded a VA examination in July 2019. The Veteran expressed that he has worsening symptoms of ankle pain, and sharp pain to the top of his ankle with swelling every day that increases with prolonged standing. The Veteran reported right ankle stiffness and weakness. The Veteran did not report flare-ups of the ankle. The Veteran reported having functional loss or impairment with prolonged standing. The Veteran's right ankle plantar flexion was from 0 to 30 degrees and dorsiflexion was from 0 to 10 degrees. Pain was noted on the examination and causes functional loss. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner noted that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time. Plantar flexion would be from 0 to 30 degrees and dorsiflexion from 0 to 10 degrees. The examiner noted that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with flare-ups.The examiner noted that the Veteran has less movement than normal, swelling, disturbance of locomotion, interference with sitting and interference with standing. The Veteran has localized tenderness or pain on palpation. The examiner noted a reduction of muscle strength with no muscle atrophy. The examiner indicated that there was no ankylosis. There was no ankle instability or dislocation suspected. The examiner reported that the Veteran has achilles tendonitis or Achilles' tendon rupture. The examiner noted right ankle and heel pain that goes up back of the leg which makes it hard to walk. The Veteran does not have "shin splints", stress fractures, malunion of calcaneus (os calcis) or talus (astragalus), or has had a talectomy (astragalectomy). The examiner noted regular use of a cane for stability for ankle pathology. The Veteran was afforded a VA examination in January 2020. The Veteran reports that his condition has worsened over the years with current symptoms described as ankle pain. The Veteran reported flare-ups that occur daily and that are moderate. The Veteran indicated that his right ankle flare-ups are precipitated by prolong walking, standing, and climbing stairs. The Veteran reported function impairment and loss that result in limited range of motion. The Veteran's right ankle plantar flexion was from 0 to 20 degrees and dorsiflexion was from 0 to 5 degrees. Pain was noted on the examination and causes functional loss. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing. The Veteran's right ankle plantar flexion was from 0 to 15 degrees and dorsiflexion was from 0 to 5 degrees. The examiner noted that pain and lack of endurance significantly limit functional ability with repeated use over a period of time. The Veteran's right ankle plantar flexion was from 0 to 10 degrees and dorsiflexion was to 0 degrees. In addition, pain and lack of endurance significantly limit functional ability during a flare-up. The Veteran's right ankle plantar flexion was from 0 to 5 degrees and dorsiflexion to 0 degrees. Muscle strength was normal with no muscle atrophy. No ankylosis was reported. No ankle instability or dislocation was suspected. The examiner reported that the Veteran does not have "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or has had a talectomy (astragalectomy). The examiner reported that the Veteran constantly uses a cane for stability while standing and walking. Based on the Veteran's right ankle symptoms, the RO has assigned a 20 percent disability rating under Diagnostic Code 5271, which is the maximum schedular rating available under that diagnostic code. See 38 C.F.R. § 4.71a. As such, the Veteran's right ankle disability cannot be assigned an increased rating based on limited motion of the ankle. The Board notes that regulations regarding limitation of motion of the ankle changed effective February 7, 2021. The assigned percentages remained the same for the disabilities, with the ankle disabilities still being described as either moderate (warranting a 10 percent disability evaluation under DC 5271) or marked (warranting a 20 percent disability under DC 5271). The new regulation defines moderate as less than 15 degrees dorsiflexion or less than 30 degrees of plantar flexion. It defines marked as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. Applying the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021 would not warrant a higher disability evaluation for the right ankle. Likewise, the Board acknowledges that when rating disabilities of the musculoskeletal system, it must consider whether a higher rating is warranted to account for additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, when those factors are not contemplated by the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board observes that the Veteran reported functional loss due to flare-ups of his right ankle disability during the appeal period. However, as noted above, the Veteran is already in receipt of the maximum schedular rating available for the ankle based on limitation of motion. A higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, there is no basis to assign a higher rating under DeLuca. See VAOPGCPREC 36-97 (Dec. 12, 1997). A rating in excess of 20 percent for the right ankle disability is not warranted under any other potentially applicable rating criteria pertaining to the ankle. Indeed, a rating in excess of 20 percent is not warranted under DC 5270 (for ankle ankylosis) or DC 5272 (for ankylosis of the subastragalar or tarsal joint) because the evidence does not demonstrate ankylosis or ankylosis of the subastragalar or tarsal joint for the right ankle. Also, the right ankle has not undergone an astragalectomy; therefore, a rating in excess of 20 percent is not warranted under DC 5274 for astragalectomy. Furthermore, the evidence does not demonstrate malunion of the os calcis or astragalus; therefore, a higher rating under DC 5273 (for malunion of the os calcis or astragalus) is not warranted. The Board has considered the Veteran's statements of record that a higher rating is warranted for his right ankle disability. The Veteran is competent to report symptomatology relating to pain caused by his ankle disability because this requires only personal knowledge as it comes to him through his own senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). He is not, however, competent to identify a specific level of disability relating such to the appropriate DCs. The Board finds that the question of the severity of his ankle disability is medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). (Continued on the next page) To the extent that the Veteran alleges greater severity, the Board finds that the probative value of his assertions is outweighed by the aforementioned examiners' findings. Indeed, competent evidence concerning the severity of the Veteran's right ankle disability has been provided by the VA examiners during the current appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the rating criteria for the right ankle disability. Based on the foregoing, the Board concludes that the Veteran's right ankle disability has been no more than 20 percent disabling for the period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.