Citation Nr: 21070955 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-52 083 DATE: November 29, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left ankle disability is denied. FINDING OF FACT The Veteran's left ankle disability was productive of painful motion without evidence of marked limitation. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5271 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from October 1983 to November 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In April 2021, the Board remanded the Veteran's claim for additional development. The case has now been returned to the Board for further appellate action. The Veteran also appealed the issues of entitlement to service connection for hypertension, entitlement to service connection for a neurological disability, and entitlement to service connection for a respiratory disability. In a September 2021 rating decision, the RO granted service connection for hypertension, a neurological disability, and a respiratory disability, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, those matters are no longer in appellate status. See Grantham, 114 F.3d at 1158. The Veteran contends that his left ankle disability warrants a rating in excess of 10 percent. During the January 2021 Board hearing, the Veteran testified that his ankle pain, discomfort, and instability had worsened. During a December 2013 VA examination, the Veteran reported pain, crackles, crunches, and instability of the left ankle with ramps and stairs. He endorsed flare-ups of the ankle with increased pain with repeated stairs or ramps. Range of motion testing revealed plantar flexion to 30 degrees with objective evidence of painful motion at 25 degrees, and dorsiflexion to 15 degrees with objective evidence of painful motion at 10 degrees. The Veteran was able to perform repetitive use testing with no additional loss of motion. There was no localized tenderness or pain on palpation of the left ankle. There was normal muscle strength of the left ankle in plantar flexion and active movement against some resistance in dorsiflexion. There was laxity of the left ankle. There was no ankylosis of the left ankle. The Veteran had not undergone any surgeries of the left ankle and did not require the use of any assistive devices. X-rays of the left ankle revealed a plantar calcaneal spur. The Veteran was assessed with a severe sprain with residual instability of the left ankle. In a June 2014 VA addendum opinion, the VA clinician opined that pain, weakness, fatigability, or incoordination could limit functional ability of the left ankle by 5 degrees of flexion and extension during flare-ups or with repeated use. During a November 2015 VA examination, the Veteran reported worsening ankle pain, instability, and difficulty walking on uneven surfaces. He endorsed flare-ups of the ankle described as discomfort when getting around work, pain, and aching on cold mornings. The Veteran noted that he was able to complete his work tasks with pain. Range of motion testing revealed dorsiflexion to 15 degrees and plantar flexion to 40 degrees, with no pain noted on examination. There was no evidence of pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. There was no reduction in muscle strength or muscle atrophy. Left ankle instability or dislocation was suspected. The Veteran ambulated with the regular use of supportive boots. X-rays of the left ankle revealed mild degenerative changes. The Veteran was assessed with lateral collateral ligament strain. During an August 2017 VA examination, the Veteran reported left ankle pain especially on cold mornings, poor stability on stairs, and reduced range of motion. He endorsed flare-ups of the ankle described as increased pain when using stairs. He noted that he avoided walking on uneven ground and prolonged standing. Range of motion testing revealed dorsiflexion to 5 degrees and plantar flexion to 25 degrees with pain noted on dorsiflexion. There was tenderness to palpation posterior to the malleolus and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. Muscle strength testing of the left ankle was normal with no reduction in muscle strength, no muscle atrophy, and no ankylosis. There was ankle instability or dislocation of the left ankle. There was no pain on passive range of motion and there was pain when the joint was used in non-weight bearing. The examiner diagnosed the Veteran with osteoarthritis of the left ankle. During a September 2021 VA examination, the Veteran reported lack of flexibility, lack of strength and stability, and shooting pains. He reported flare-ups of the left ankle several times per day lasting several minutes precipitated by walking, standing, and stairs. He noted that he was unable to bend his ankle when getting off of the floor and he had to lift his foot at the knee. He also endorsed weakness of the ankle and lack of flexibility which increased instability. Range of motion testing revealed active and passive plantar flexion to 35 degrees and dorsiflexion to 15 degrees limited due to pain, weakness, and fatigability. There was no objective evidence of crepitus and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform three repetitions of motion with no additional loss of function or range of motion. The examiner indicated that pain, fatigability, and lack of endurance would cause functional loss with repeated use and during flare-ups with no resulting loss of motion. There was no muscle atrophy and no ankylosis of the ankle. X-rays of the left ankle were reported to be normal. The Veteran did not use any assistive devices for the left ankle but indicated that he used supportive boots. The examiner diagnosed degenerative arthritis of the left ankle. Given the aforementioned evidence, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his left ankle disability. In this regard, there is no indication from the evidence of record that the Veteran had limitation of motion in the left ankle that was more than moderate in severity. At worst, the Veteran has been shown to have left ankle dorsiflexion to 5 degrees, and left ankle plantar flexion to 25 degrees. Specifically, at the December 2013 VA examination, the Veteran had 30 degrees of plantar flexion and 15 degrees of dorsiflexion, at the November 2015 VA examination the Veteran had dorsiflexion to 15 degrees and plantar flexion to 40 degrees, at the August 2017 VA examination the Veteran had dorsiflexion to 5 degrees and plantar flexion to 25 degrees, and at the September 2021 VA examination the Veteran had plantar flexion to 35 degrees and dorsiflexion to 15 degrees. The Veteran was able to perform repetitive use testing with no additional loss of motion or function. 38 C.F.R. § 4.40, 4.45 (2020). The Board has considered the effects of repeated use over time and flare-ups in light of the Court of Appeals for Veterans Claims (Court) holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the evidence indicates that the Veteran had tenderness on palpation and pain with weight-bearing (active movement) and pain with nonweight-bearing at various examinations. The December 2013 VA examiner noted additional functional impairment with flare-ups with five degrees of loss of motion on dorsiflexion and plantar flexion and the September 2021 VA examiner noted additional functional impairment with repeated use over time and with flare-ups but no reduction in his range of motion. Therefore, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a rating in excess of 10 percent for the Veteran's left ankle disability. 38 C.F.R. § 4.71, Diagnostic Code 5271. The Board notes that there have been changes to the musculoskeletal regulations effective February 7, 2021. The Board may continue the old rating criteria to rating periods prior to February 7, 2021, but may apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to that date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the new rating criteria effective February 7, 2021, no changes were made to Diagnostic Code 5270, or Diagnostic Codes 5272-5274. On the other hand, changes were made to Diagnostic Code 5271. Specifically, under the new rating criteria under Diagnostic Code 5271 provide that a 10 percent rating is warranted for moderate limited motion of the ankle (defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A 20 percent is warranted for limited motion of the ankle (defines as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). At no point during the period from February 7, 2021 has the left ankle disability manifested in marked limited motion of the ankle as defined under the new rating criteria. Accordingly, a higher rating under the new rating criteria effective February 7, 2021, is not warranted. (Continued on the next page) Accordingly, the Board finds that a preponderance of the evidence is against the left ankle higher rating claim. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, as the preponderance of the evidence is against the claim, entitlement to a disability rating in excess of 10 percent for the left ankle disability is not warranted. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.