Citation Nr: 21071980 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-62 886 DATE: December 1, 2021 ORDER Entitlement to a 20 percent rating, but no higher, for right ankle chronic strain with osteoarthritis, effective July 18, 2013, is granted. Entitlement to a 20 percent rating, but no higher, for left ankle chronic strain with osteoarthritis, effective July 18, 2013, is granted. FINDINGS OF FACT 1. From the date of claim seeking an increased rating, July 18, 2013, the Veteran's right ankle chronic strain with osteoarthritis more nearly approximated marked limitation of motion; there have been no objective findings of ankylosis. 2. From the date of claim seeking increased rating, July 18, 2013, the Veteran's left ankle chronic strain with osteoarthritis more nearly approximated marked limitation of motion; there have been no objective findings of ankylosis. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for right ankle chronic strain with osteoarthritis have been met, effective July 18, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (effective prior to February 7, 2021). 2. The criteria for a 20 percent rating, but no higher, for left ankle chronic strain with osteoarthritis have been met, effective July 18, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (effective prior to February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1965 to December 1970, and from March 1971 to December 1985. In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2021, the Board remanded these issues for further development. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to increased ratings for the right and left ankle disabilities The Veteran is seeking increased ratings for his right and left ankle disabilities. He asserts that his functional limitations warrant higher ratings and that he suffers from instability. He is also required to use assistive devices. The Veteran filed his current claim on July 18, 2013. Thus, the Board must determine whether the Veteran's disabilities met the criteria for a higher rating up to one year prior to the date of claim. The Veteran's right and left ankle disabilities have been rated as 10 percent disabling each under the provisions of Diagnostic Code 5271 for limitation of motion. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As in the instant case, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Further, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, the Board notes that a disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; see also DeLuca v. Brown, 8 Vet. App. 202. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Further, a VA examination is inadequate when the VA clinician does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). In this regard, review of the most recent May 2021 VA examination report, which is discussed further below, show that joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and with range of motion measurements of the opposite undamaged joint was done in compliance with Correia. Moreover, the examiner also estimated any additional functional loss during flare-ups or repeated use over time in compliance with Sharp. 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. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under the prior Diagnostic Code 5271, a 10 percent rating is warranted when the ankle has moderate limitation of motion and a 20 percent rating is warranted when the ankle has marked limitation of motion. Full range of motion of the ankle is from zero to 20 degrees dorsiflexion and from zero to 45 degrees plantar flexion. 38 C.F.R. § 4.71a , Plate II. While the previous rating schedule itself did not provide any additional guidance as to what constitutes "moderate" or "marked" limitation of ankle motion, guidance could be found in VBA's M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. The new rating schedule essentially effectuated the guidance outlined in the M21-1 Manual. Under the new criteria, a 10 percent rating is warranted when the ankle has moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion); and a 20 percent rating is warranted when the ankle has marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). The only other Diagnostic Code allowing for a higher evaluation for an ankle is Diagnostic Code 5270, which was not revised. This regulatory provision requires ankylosis of the ankle. A 30 percent rating is warranted with ankylosis between 30 degrees and 40 degrees in plantar flexion or between 0 degrees to 10 degrees in dorsiflexion. A 40 percent rating is warranted with ankylosis more than 40 degrees plantar flexion, more than 10 degrees dorsiflexion, or with abduction, adduction, inversion or eversion deformity. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27th ed. 1988) at 91). Based on review of the evidence of record and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 20 percent rating for each ankle is warranted under the prior Diagnostic Code 5271 for marked limitation of motion. Significantly, the most recent June 2021 VA examiner found that during flare-ups, the Veteran had dorsiflexion limited to 5 degrees and plantar flexion to 25 degrees in the right ankle; and dorsiflexion limited to 10 degrees and plantar flexion to 25 degrees in the left ankle. Although the range of motion findings were slightly higher than what is suggested to be considered marked limitation of motion in the VBA manual and under the new criteria, the Board finds it significant that the examiner also noted that the Veteran reported a history of instability. Although the examiner did not find instability on examination, the Veteran is competent to report such symptoms. Further, there is not a separate diagnostic code for ankle instability and, thus such symptoms must be rated under Diagnostic Code 5271. See M21-1, Part V, Subpart iii, Chapter 1, Section B, V.iii.1.B.4.i. The examiner also noted that the Veteran experienced interference with standing and disturbance of locomotion. The Veteran also had to regularly use a walker and occasionally an ankle sleeve for his ankle disabilities. Moreover, the examiner found that the Veteran's bilateral ankle disabilities did impact his ability to work as he had difficulty standing for long periods and walking long distances. The Veteran was afforded prior examinations in March 2012, November 2014 and February 2015. However, these VA examinations do not meet the criteria under Correia and Sharp and, thus, are inadequate for rating purposes. Moreover, the February 2015 VA examiner found that the Veteran showed extreme guarding and displayed volitational pain behavior and, in turn, his range of motion at that time was invalid for rating purposes. Nevertheless, the Board finds it significant that the March 2012 VA examiner also found that the Veteran's ankle conditions impacted his ability to work due to pain and discomfort with prolonged standing and walking. The examiner also noted decreased strength in both ankles. The November 2014 VA examination only addressed the right ankle, but again documented decreased strength and found that the right ankle disability impacted his ability to work. The examiner noted that the Veteran was unable to stand or walk for more than 20 to 30 minutes. Moreover, the Veteran testified that he was unable to walk very much because of pain. He was only able to walk for about 10 minutes. He reported that he had difficulty doing activities and he could no longer do physical activities. He stated that he had marked limitation of motion. He also experienced worsening symptoms and decreased functioning during flare-ups. He further reported experiencing instability and using ankle supports. He also used a TENS machine for the pain. These statements document significant functional impairment and the impact his bilateral ankle disability has on his daily life. When considering the functional impairment caused by his right and left ankle disabilities, including a reported history of instability, the impairment caused by these disabilities more closely approximates marked limitation of motion. Therefore, considering the above and in light of DeLuca, a 20 percent rating for each ankle under Diagnostic Code 5271 is granted. The Board finds that the Veteran's functional impairment caused his ankle disabilities has been consistent throughout the course of the appeal and thus, the increased ratings are warranted from July 18, 2013, the date of claim. The Board has considered whether it was factually ascertainable that the Veteran's service-connected right and left ankle disabilities had increased in severity in the year prior to July 18, 2013. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). However, there is simply no evidence during this period showing that the Veteran suffered from more severe symptoms to warrant a 20 percent rating. In this regard, VA clinical records only note that the right ankle had full range of motion during this period. Moreover, the Board finds that a rating in excess of 20 percent for either ankle is not warranted at any point during the course of the appeal. Initially, the Board notes that since the Veteran has been granted the maximum rating possible under limitation of motion for the ankle, a further analysis under DeLuca, supra, would not result in a higher rating. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Correia v. McDonald, 28 Vet. App. 158 (2016). Likewise, the evidence does not include any reports of ankylosis of the ankle. The May 2021 VA examination specifically found that there was no ankylosis. Therefore, a higher disability evaluation based on ankylosis under Diagnostic Code 5270 is not warranted. Similarly, there is no evidence of ankylosis of the subastragalar or tarsal joint, or malunion of os calcis or astragalus with deformity or astragalectomy to warrant separate ratings under Diagnostic Codes 5272, 5273 and 5274. See 38 C.F.R. § 4.71a. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of right and left ankle disabilities. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disabilities on appeal have been more severe than the assigned disability ratings reflect. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Importantly, the Veteran's lay statements were contemplated in awarding the current 20 percent rating from July 18, 2013. Based upon the guidance of the Court in Hart, cited above, the Board has considered whether a staged rating is appropriate. However, as outlined above, the Veteran has not been entitled to a disability evaluation in excess of 20 percent at any time since July 18, 2013. As such, staged ratings are not warranted. In conclusion, a 20 percent rating each, but no higher, for right ankle chronic strain with osteoarthritis and left ankle chronic strain with osteoarthritis, is granted, effective July 18, 2013. In reaching this conclusion, the Board has applied the benefit-of-the doubt doctrine but finds that the preponderance of the evidence is against assignment of any higher rating. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.