Citation Nr: 21070051 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-28 188A DATE: November 22, 2021 ORDER A 20 percent disability rating, but no higher, for status post right ankle fracture with degenerative arthritis is granted. A 40 percent disability rating, but no higher, for degenerative arthritis and disc herniation of the lumbar spine is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's status post right ankle fracture with degenerative arthritis was manifested by marked limitation of motion, to include pain and stiffness, without ankylosis. 2. For the entire period on appeal, the Veteran's degenerative arthritis and disc herniation of the lumbar spine manifested by severe painful motion with forward flexion approximating 30 degrees or less, without ankylosis or intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for status post right ankle fracture with degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5271. 2. The criteria for a 40 percent disability rating for degenerative arthritis and disc herniation of the lumbar spine are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1961 to July 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2014 by the Department of Veterans Affairs (VA) Regional Office in Decatur, Georgia. They were previously before the Board in August 2018 and July 2020. In July 2020, the claims were denied by the Board. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Joint Motion for Partial Remand (JMPR) the parties agreed that the Board erred on two fronts: first, when it relied on an inadequate VA examination from December 2013 which indicated the Veteran experienced flare-ups of his right ankle disability, but which did not provide a measurement or estimation of the Veteran's range of motion during flare-ups. Second, the parties agreed that the Board erred when it relied on a February 2012 VA examination report which failed to address range of motion on flare-ups of the Veteran's spine disability. Further, the Board failed in relying on an inadequate October 2019 VA examination in which the examiner failed to conduct passive range of motion testing on the Veteran's spine. The Court then vacated the July 2020 decision and remanded the claims to the Board for further action. As a final note, the Board's July 2020 decision also denied service connection for left knee degenerative arthritis and a right leg disability. The Veteran declined to pursue an appeal of those issues and they were dismissed by the Court; as such, they are not before the Board. Increased Ratings Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disability ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lumbar spine The Veteran's degenerative arthritis and disc herniation of the lumbar spine (hereinafter, "back disability") is rated under Diagnostic Code 5242, according to The General Rating Formula for evaluating the spine. The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note 1 of the rating criteria instructs that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate Diagnostic Code. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. A rating under Diagnostic Code 5243, for IVDS, is also available for a back disability. A rating under Diagnostic Code 5243 requires disc herniation with compression and/or irritation of the adjacent nerve root, and is rated pursuant to incapacitating episodes. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that, as of February 7, 2021, VA amended the rule pertaining to the evaluation of musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 25,450 (November 27, 2020). Diagnostic Code 5242 rating criteria was not amended, other than revising the title to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome". 38 C.F.R. § 4.71A, Diagnostic Code 5242. On VA back examination in February 2012, the Veteran reported low back pain and described flare-ups of low back pain which he described as being "unable to do anything physical." Range of motion testing of the lumbosacral spine showed forward flexion to 45 degrees with pain beginning at 45 degrees and no additional limitation of motion on repetitive testing. There was functional loss or impairment due to pain on movement. Physical examination of the lumbosacral spine showed guarding or muscle spasm not resulting in abnormal gait or spinal contour, 5/5 muscle strength, normal deep tendon reflexes and sensation, and positive straight leg raising bilaterally. X-rays showed arthritis. The diagnosis was degenerative arthritis of the thoracolumbar spine. At a VA examination conducted in December 2013, the Veteran reported low back pain when lifting, bending, standing for long periods, or standing up from sitting. A history of back surgery was noted. He denied experiencing flare-ups of low back pain at that time. Range of motion of the lumbosacral spine testing showed forward flexion to 90 degrees with painful motion beginning at 20 degrees and no additional limitation of motion on repetitive testing. The Veteran constantly used a cane. The diagnosis was degenerative arthritis and disc herniation, lumbosacral spine, status-post surgery. At an October 2019 examination, the Veteran reported low back pain on motion, prolonged sitting, and weight bearing. He reported flare-ups of worsening pain and "less ability to bend." He had less flexibility with weight bearing, twisting, and motion. Range of motion testing of the lumbosacral spine showed forward flexion to 35 degrees and an inability to perform repetitive testing due to complaints of pain. The VA examiner stated that lumbosacral spine forward flexion was to 30 degrees with pain limiting functional ability with repeated use over time. Physical examination of the lumbosacral spine showed tenderness to palpation, no pain with weight bearing, disturbances of locomotion, interference with sitting and standing, pain on prolonged weight bearing and sitting, 5/5 muscle strength, hypoactive reflexes, decreased sensation in the bilateral feet/toes, negative straight leg raising bilaterally, and no ankylosis, other neurologic abnormalities, or intervertebral disc syndrome. The Veteran regularly used a cane to walk. The diagnosis was degenerative arthritis and disc herniation, lumbosacral spine, status-post surgery with scar. Based on this evidence, the Board finds that a 40 percent disability rating, but no higher, is warranted for the Veteran's back disability for the entire period on appeal. The Board acknowledges that the evidence prior to the October 2019 examination lacks any indication that the Veteran experienced forward flexion to 30 degrees or less or ankylosis (whether favorable or unfavorable) of the entire thoracolumbar spine or the entire spine. However, at the February 2012 examination he described a marked reduction in flexion, due to pain, and the December 2013 VA examination documented painful motion that began at 20 degrees of forward flexion. The Veteran has consistently reported that he experiences flare-ups of such severity that it prevents him from performing physical actions. Thus, resolving all reasonable doubt in his favor, the Board finds that the criteria for a 40 percent rating have arguably been met. As for a rating in excess of 40 percent, under the current Diagnostic Code, such would require a finding of unfavorable ankylosis of the entire thoracolumbar spine. Such is not shown here; in fact, at no time during the appeal period has any ankylosis been present. Consideration has been given as to whether the Veteran experiences the functional equivalent of ankylosis due to his complaints of functional loss due to flare ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In doing so, the Board acknowledges the Veteran's statement that he is unable to perform physical activities due to his back, and the implicit argument that such is the functional equivalent of ankylosis. However, in the medical records of evidence and at every back examination during the appeal period, the Veteran has consistently shown to have motion of his spine. Therefore, because the Veteran retains motion of the back, a higher rating is not warranted. Crucially, no medical examiner, even when taking the Veteran's statements into account, has found ankylosis or the functional equivalent. Without a showing of ankylosis, a rating in excess of 40 percent is not warranted and additional consideration of functional loss is also not warranted. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board also concludes that a rating is not warranted under the Formula for IVDS under Diagnostic Code 5243, as the record does not indicate manifestations of IVDS, or any incapacitating episodes due to his low back disability. The Board finds this evidence persuasive as to this aspect of the rating criteria. In sum, the evidence is in favor of a 40 percent rating for the entire appeal period for the Veteran's low back disability. However, the preponderance of the evidence is against a rating in excess of 40 percent. Thus, the benefit of the doubt doctrine is not further applicable, and a rating in excess of 40 percent for a back disability is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Right Ankle The Veteran's status post right ankle fracture with degenerative arthritis (hereinafter, "right ankle disability") is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271, for limitation of motion of the ankle. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that degenerative arthritis (Diagnostic Code 5010) is rated under the criteria for limited motion of the ankle (Diagnostic Code 5271). Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A maximum 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). The Board notes VA revised the rating criteria for evaluating ankle disorders, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Here, the changes to Diagnostic Code 5271 essentially defined "moderate" and "marked" in terms of range of motion. This change in the rating criteria has no impact on the Veteran's ankle rating and does not impact the Board's decision other than clarifying the criteria. A rating for an ankle disability may be assigned a rating higher than 20 percent under Diagnostic Code 5270, if ankylosis is present. Under that code, a 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. The Veteran was afforded a VA examination in December 2013. At that time, he reported experiencing chronic right ankle pain. He regularly wore a right ankle brace. Flare-ups of right ankle pain decreased his ability to walk or stand for long periods of time. Physical examination of the right ankle showed 5/5 muscle strength and no tenderness to palpation, ankylosis, or laxity. The diagnoses included status-post right ankle fracture with degenerative arthritis. The Veteran's VA treatment notes throughout the appeal period indicate a longstanding and consistently-reported history of right ankle pain and stiffness. Imaging tests from 2013 and 2016 show moderate degenerative joint disease. The Veteran consistently used an ankle brace to aid in ambulation. In addition, in multiple lay statements submitting in support of the Veteran's claim, his wife and associates reported witnessing the Veteran falling as a result of his right ankle giving way. The Veteran underwent a VA examination in October 2019. At that time, he reported right ankle giving way, losing his balance, occasional right ankle swelling, and a chronic right ankle pain. He wore an ankle brace. He used a cane in order to walk, in part because of his ankle. He denied experiencing flare-ups of right ankle pain, but experienced functional loss or functional impairment which he described as less weight bearing on standing and walking and pain with driving. His limited range of motion in the right ankle resulted in less ability to do prolonged weight bearing, climbing, and squatting. Physical examination of the right ankle showed pain with weight bearing, instability of station, disturbances of locomotion, interference with standing, without ankylosis. The Veteran regularly used an ankle brace and a cane to walk. The diagnosis was status-post right ankle fracture with degenerative arthritis. Based on this evidence, the Board determines the Veteran's right ankle disability more closely approximated marked limitation of motion throughout the appeal period. Thus, an increased rating to 20 percent is warranted. The Board notes this is the maximum rating available for the right ankle disability, absent ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Throughout the appeal period, the evidence shows that the Veteran has experienced severely limited right ankle movement, as well as pain and stiffness. Additionally, the medical evidence of record supports that the Veteran's right ankle exhibited marked limitation of motion, approximating less than 10 degrees dorsiflexion when factoring in his functional loss. Further, the October 2019 VA examination report indicated right ankle plantar flexion limited to 25 degrees and dorsiflexion limited to 0 degrees. Thus, the evidence supports a maximum 20 percent rating under Diagnostic Code 5271 for the entire period on appeal. As noted, this is the highest schedular rating for limited motion of the ankle, and there is no basis to award a higher rating without the presence of ankylosis, which has not been shown. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Thus, when resolving all reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.