Citation Nr: 21069730 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-24 942 DATE: November 19, 2021 ORDER Entitlement to a rating in excess of 20 percent for status post left total ankle replacement status post complete revision for the period prior to August 19, 2016 is denied. Entitlement to a rating in excess of 40 percent for status post left total ankle replacement status post complete revision for the period from October 1, 2017 to December 14, 2017 and from February 1, 2019 is denied. FINDINGS OF FACT 1. Prior to August 19, 2016, the Veteran's left ankle disability was manifested by marked limitation of motion of this ankle. 2. From October 1, 2017 to December 14, 2017 and from February 1, the Veteran's left ankle disability is already assigned the maximum schedular rating authorized under the applicable diagnostic code. CONCLUSIONS OF LAW 1. Prior to August 19, 2016, the criteria for a rating in excess of 20 percent for the Veteran's left ankle disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for entitlement to an increased disability rating in excess of 40 percent for a left ankle disability from October 1, 2017 to December 14, 2017 and from February 1, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5056. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to March 2003. The Veteran testified at a Board hearing held via videoconference before the undersigned Veterans Law Judge (VLJ) in October 2019. The claims were previously remanded by the Board for additional development, most recently in April 2021, and now return for further appellate review. The Board finds that there was substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). On remand, in an August 2021 rating decision, the agency of original jurisdiction (AOJ) granted an increased rating of 40 percent for the left ankle disability effective October 1, 2017, confirmed and continued the temporary evaluation from December 15, 2017, and granted an increased rating of 40 percent from February 1, 2019. Additionally, in the August 2021 rating decision, the claim for service connection for right lower extremity radiculopathy was granted and thus is no longer in appellate status. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 background 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 20 percent for status post left total ankle replacement status post complete revision for the period prior to August 19, 2016 With respect to disabilities of the ankle, 38 C.F.R. § 4.71a, Diagnostic Codes 5270 through 5274, set forth relevant provisions and DC 5056 sets forth relevant provisions for residuals of total ankle replacement. Diagnostic Code 5270 evaluates ankylosis of the ankle. A 20 percent rating is assigned for ankylosis of the ankle in plantar flexion less than 30 degrees. A 30 percent rating is assigned for ankylosis of the ankle in plantar flexion between 30 and 40 degrees or dorsiflexion between 0 and 10 degrees. A 40 percent rating is assigned for ankylosis of the ankle in plantar flexion at more than 40 degrees, dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 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). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Diagnostic Code 5271 evaluates range of motion in the ankle. Prior to the regulatory changes, under DC 5271, a 20 percent rating is assigned for limited motion of the ankle that is marked. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2020). As of February 7, 2021, under the amended criteria, a 20 percent rating is warranted for marked limitation of motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). A 20 percent rating constitutes the highest schedular rating based on limitation of motion. Diagnostic Code 5272 evaluates ankylosis of the subastragalar or tarsal joint. No VA examiner has diagnosed ankylosis of the subastragalar or tarsal joint, and VA treatment records fail to suggest the presence of ankylosis of the subastragalar or tarsal joint. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5273 evaluates malunion of the os calcis or astragalus. The medical record does not document malunion of the os calcis or astragalus of the left ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. The medical record does not document removal of the talus bone of the left ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran has been assigned a 20 percent rating under Diagnostic Code 5271, which represents the maximum rating schedular rating based on limitation of motion. The only higher available ratings that can be assigned are for ankylosis. The Board finds that, from the beginning of the appeal period, until August 19, 2016, when the Veteran underwent surgery for left ankle replacement, a disability rating exceeding 20 percent is not warranted. The two VA examinations completed during this time period, in December 2012 and June 2014, as well as the treatment records dated during this time period, indicate he did not have ankylosis of this ankle. Rather, he had plantar flexion and dorsiflexion of this ankle, although both with varying degrees of limitation. Even when motion is markedly limited, it is not tantamount to ankylosis since ankylosis requires no ankle motion at all. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The Veteran's treatment records show that prior to August 19, 2016, ankylosis of the left ankle was not shown. Absent indication of ankylosis, a higher rating is not warranted. In this regard, the Veteran was able to ambulate, albeit with a cane, and attend to his activities of daily living. The record does not show a disability that would be considered similar or akin to ankylosis. The 20 percent rating assigned for this period of time accounts for his symptoms of pain, stiffness, and other impairment, to include limitation of movement and limitation of physical activity. The Board has considered whether a higher disability evaluation 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). However, the Veteran is in receipt of the maximum rating allowed based range of motion. The only higher ratings available are a 30 percent rating and a 40 percent rating for ankle ankylosis. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has also considered entitlement to an increased rating under other ankle-related diagnostic codes. While DC 5262 mentions marked ankle impairment in its 30 percent rating, it is only for application upon a showing of malunion of the tibia and fibula, which is not shown or asserted here. Prior to August 19, 2016, the Board finds that the criteria to assign a rating in excess of 20 percent for the Veteran's left ankle disability have not been met. The Veteran was already in receipt of the maximum schedular rating for limitation of motion. In addition, ankylosis of the ankle was not shown. 2. Entitlement to a rating in excess of 40 percent for status post left total ankle replacement status post complete revision for the period from October 1, 2017 to December 14, 2017 and from February 1, 2019 The Veteran's left ankle disability has been rated 40 percent disabling from October 1, 2017 to December 14, 2017 and from February 1, 2019 under 38 C.F.R. § 4.71a, DC 5056. The Board notes that, during part of the period on appeal, from December 15, 2017 to January 31, 2018, the Veteran was granted a temporary 100 percent rating, to include a period of convalescence. Under DC 5056, a minimum 20 percent rating is warranted for prosthetic ankle replacement. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to DC 5270 or 5271. A 40 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness. That is the highest schedular rating available under DC 5056. 38 C.F.R. § 4.71a, DC 5056. The Board notes that during this relevant period, which does not include any period of temporary 100 percent rating for convalescence, the Veteran's left ankle condition has been rated 40 percent. A 40 percent rating is the highest schedular rating possible for an ankle disability under any applicable DC. As the Veteran is in receipt of the maximum schedular rating, the Board finds that there is no legal basis upon which to award a higher schedular evaluation for a left ankle disability from October 1, 2017 to December 14, 2017 and from February 1, 2019. As such, entitlement to a disability rating in excess of 40 percent for status post left total ankle replacement status post complete revision is not warranted on a schedular basis. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The claim is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.