Citation Nr: A21019019 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 200305-72750 DATE: November 30, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right ankle traumatic arthritis is denied. Entitlement to service connection for a low back disability, diagnosed as lumbosacral strain with degenerative arthritis ("low back disability") is granted. FINDINGS OF FACT 1. During the period on appeal, the Veteran's right ankle traumatic arthritis was characterized by moderate limited motion; indicia of marked limited motion, to include limitation of dorsiflexion to less than 5 degrees, or limitation of plantar flexion to less than 10 degrees, is not shown. 2. The Veteran's low back disability onset in service and is related to service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right ankle traumatic arthritis post fracture have not been 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. 2. The criteria for service connection for a low back disability, diagnosed as lumbosacral strain with degenerative arthritis ("low back disability") have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1968. The rating decision on appeal was issued in July 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In his March 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of entitlement to an initial rating in excess of 10 percent for right ankle traumatic arthritis, and entitlement to service connection for a low back disability, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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; 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). 1. Entitlement to an initial rating in excess of 10 percent for right ankle traumatic arthritis post fracture The Veteran currently receives a 10 percent rating for his right ankle disability for "moderate" limitation of motion under 38 C.F.R. § 4.71a, DC 5271. Under this rating formula, a 20 percent rating is warranted when the evidence shows "marked" symptoms. The words "moderate" or marked," as used in the various Diagnostic Codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. In order to warrant a rating in excess of 10 percent under a different diagnostic code, the evidence must show ankylosis of the ankle in plantar flexion less than 30 degrees, or in dorsiflexion, between 0 and 10 degrees (20 and 30 percent respectively under DC 5270). See C.F.R. 4.71a, Diagnostic Code (DC) 5271. The Veteran asserts entitlement to a higher rating. Specifically, in his March 2020 VA Form 10182, the Veteran appears to assert that there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. However, at the time of the July 2019 rating decision, he was only service-connected for one joint. Moreover, DC 5003m to which the Veteran refers, applies only when there is no limitation of motion. In this case, where there is limitation of motion, the Board applies the specific DC under which the joint is rated. In this case, a rating in excess of 10 percent for the Veteran's right ankle disability, is not warranted. Specifically, the Veteran's right ankle symptoms are more closely described as moderate than marked. Non-VA physical examination reports dated March 2017, July 2017, and September 2017, indicate a completely absent right ankle reflex, but no sensory deficit. Notably, the examiner does not mention a diminished range of motion. At his July 2019 C&P examination, the Veteran reported worsening pain over the previous six years. He had morning right ankle stiffness, giving way, pain at 6/10, and had already had 2 injections. He experienced more pain descending stairs and inclines than ascending them. The examiner noted a slight (4-/5) reduction in plantar muscle strength. Pain and swelling limited the Veteran's ability to walk on uneven ground or for more than 100 yards The examiner noted swelling and pain in both ranges, causing functional loss. However, the Veteran's dorsiflexion was measured at 20 degrees, a full range of motion, and his plantar flexion was only reduced to 25 degrees out of 45. These measurements are well in excess of those required for a 20 percent rating under DC 5271. The Board understands the Veteran's apparent complaints at the above-mentioned examinations of flare-ups during which pain increased. Unfortunately, however, the precise extent to which these flare-ups causes additional functional loss was not recorded; the examiner, in the appropriate section, merely refers the reader to the "Medical History" section of the examination. Moreover, the examiner also appears to not have included measurements in active and passive motion, or in weight-bearing. In any event, based on the observed range of motion and the Veteran's statements, it does not appear that the next higher rating is for contemplation, even in such situations. To the extent that any of these examinations failed to specifically address limitation of motion due to weightbearing or during periods of a flare-up, the Board is able to assess the level of limitation from such episodes through the Veteran's own statements of how his disability limits his daily functioning. Therefore, the Board does not find that a new examination would be necessary to specifically address these factors. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Lastly, the Veteran reports a decades-long proprietorship of a cleaning business, and there is no indication of record that his service-connected disabilities render him unemployable. Accordingly, a TDIU rating is not for evaluation. See Rice v. Shinseki, 22 Vet. App. 447 (200). In summary, the Board finds that the increase in ankle pain the Veteran cites is not so severe that equity and justice warrant a rating in excess of 10 percent for the Veteran's ankle disability. Further, because a measurable range of motion precludes a showing of ankylosis at any point in the record, a rating in excess of 10 percent is not warranted. During the period on appeal, the Veteran's right ankle symptoms were best described as moderate. Marked symptoms were not shown. Accordingly, the 10 percent ratings currently awarded are adequate to address his symptoms. In this regard, it is important for the Veteran to understand that the moderate pain and functional limitations he has cited are the basis for the Board's 10 percent determination. See 38 C.F.R. § § 4.59. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 2. Entitlement to service connection for a low back disorder, diagnosed as lumbosacral strain with degenerative arthritis ("low back disorder") In this case, the Veteran asserts that he incurred his currently diagnosed lumbosacral strain in the same jump that caused his already service-connected right ankle disability. Indeed, the Veteran has presented competent and credible testimony of low back symptoms since this incident in active duty. Accordingly, service connection for a low back disability is granted. First, an in-service injury is conceded. Specifically, the July 2019 AOJ decision on appeal favorably found that the Veteran has current lumbosacral strain with degenerative arthritis of the spine. Furthermore, the Veteran's competent and credible statements show in-service trauma to the back. In statements dated February 2019, June 2019, and March 2020, and at his July 2019 C&P examination, the Veteran asserts that in the same injury that caused his right ankle arthritis, his heel collided with his tailbone, causing his knee to dig into the ground, flipping his body forward, resulting in additional trauma. Additionally, the Veteran mentioned to his July 2019 examiner intermittent back pain since the incident. The Board thus finds adequate evidence of in-service manifestations of a back disability. Second, the AOJ conceded a current diagnosis of lumbosacral strain with degenerative arthritis. Next, the Veteran has presented competent and credible evidence of symptoms since service. Notably, the first treatment of record for the Veteran's low back disability is a March 2017 non-VA treatment note. In this note, the Veteran complains of low back pain, for which he first sought emergency treatment in November 2016. At his July 2019 examination, the Veteran stated that the intermittent back pain began going into his right leg six years prior. He explains to his examiner that his symptoms, though intermittent, worsened significantly. Thus, the Veteran's intermittent back pain onset in service and worsened from 2013 to 2016. While the Veteran's 2019 VA examiner opined that the Veteran's current diagnosis is less likely than not related to his injury during active service, the report was made without the benefit of the Veteran's lay statement of symptoms since service. The Board observes that the Veteran, as a lay person, is competent to report observable symptomatology of an injury, to include pain or numbness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Moreover, the Veteran credibly attests that his low back symptoms presented intermittently since service despite not being noted in STRs, but because he was "young and dumb," he dealt with it by adjusting his sleeping position, and did not seek treatment until the symptoms became much worse. Furthermore, the Veteran was busy running his own janitorial business, which also explains why he did not seek treatment for his back until 2017. The Board finds that the Veteran's competent and credible reports of pain since service are not negated. The Board finds that the Veteran's competent and credible statements of the gradual worsening of back pain place his appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and grants service connection for his low back disability. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia