Citation Nr: 21072105 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-39 731 DATE: December 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for sinus tarsi syndrome of the left ankle with nerve impingement is denied. Entitlement to a rating in excess of 10 percent for chronic left ankle strain with loss of motion associated with sinus tarsi syndrome is denied. FINDINGS OF FACT 1. The Veteran's sinus tarsi syndrome of the left ankle has manifested functional impairment equivalent to no more than mild incomplete paralysis of a lower extremity nerve. 2. The Veteran's chronic left ankle strain with loss of motion associated with sinus tarsi syndrome has manifested functional impairment equivalent to no more than moderate limitation of motion of the ankle. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for sinus tarsi syndrome of the left ankle with nerve impingement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.124a, Diagnostic Code (DC) 8621. 2. The criteria for a disability rating in excess of 10 percent for limited motion of the left ankle associated with sinus tarsi syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1995 to November 1999. These matters came before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). These matters have a procedural history dating back to 2013. In March 2021, the Board remanded these matters for further development. The agency of original jurisdiction (AOJ) was asked to provide the Veteran with copies of VA disability benefits questionnaires (DBQ) for completion by his private physicians or to schedule him for a VA examination for his left ankle disorders. The Veteran appeared for a VA examination in August 2021. After reviewing the examination report, the Board finds that substantial compliance with the directives is achieved. Legal Criteria Rating Disabilities Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing the new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. VA must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. 1. Entitlement to a rating in excess of 10 percent for sinus tarsi syndrome of the left ankle with nerve impingement The Veteran's sinus tarsi syndrome of the left ankle with nerve impingement is rated under 38 C.F.R. § 4.71a, DC 5271-8621. Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Neuritis is to be rated on the scale for the injury of the involved nerve. 38 C.F.R. § 4.123. Under DC 8621, neuritis of the external popliteal nerve is rated as 10 percent for mild incomplete paralysis, 20 percent for moderate incomplete paralysis, 30 percent for severe incomplete paralysis, and 40 percent for complete paralysis with foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The term ''incomplete paralysis,'' with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Veteran has received a 10 percent rating for left ankle nerve impingement with mild incomplete paralysis during the entirety of the rating period. See Rating Decision Codesheet, September 2021. The question is whether any higher ratings may be assigned during the rating period. After careful review of the record, the Board finds that the evidence does not support a rating in excess of 10 percent for the left ankle nerve disorder. See 38 C.F.R. § 4.124a, DC 8621. The Board has reviewed VA examinations of the peripheral nerves of the left ankle in December 2013 and August 2021. In December 2013, the examiner found that the left ankle nerve impingement manifested mild incomplete paralysis of the external popliteal nerve and mild incomplete paralysis of the posterior tibial nerve. The examiner found symptoms including mild intermittent pain, mild numbness, and mild paresthesias and/or dysesthesias of the left lower extremity. There were no trophic changes of the left lower extremity. The examiner noted an abnormal gait and attributed it to the left ankle disorder. Reflex and muscle strength testing were normal, but the Veteran did have decreased sensation in the left lower extremity. She found that the condition would not impact the Veteran's ability to work. In August 2021, the examiner found that the left ankle nerve impingement manifested mild incomplete paralysis of the left posterior tibial nerve, but all other lower extremity nerves were normal. Reflex, muscle strength, and sensory testing showed normal results. There were no trophic changes, but the examiner noted an abnormal gait, due in part to degenerative disc disease of the lumbar spine. She noted symptoms including mild constant pain, moderate intermittent pain, mild numbness, and mild paresthesias and/or dysesthesias of the lower extremity. She found that the Veteran is limited in how long he can walk or stand without pain. The Board notes that applicable regulations do not explicitly prohibit separate ratings for different nerves under 38 C.F.R. § 4.124a. However, in this case, the Board finds that the overall severity of the left ankle nerve disorder does not suggest that a separate rating may be assigned for both the external popliteal and posterior tibial nerve. See 38 C.F.R. §§ 4.1 ("It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history") 4.14 (prohibiting multiple disability ratings for the same overlapping functional impairment). The Board is mindful that there were no trophic changes and objective testing showed that the Veteran's reflexes and muscle strength were normal during the rating period. 38 C.F.R. § 4.120. Sensory testing showed diminished results in 2013, but the examiner noted only mild symptoms of pain, numbness, and paresthesias/dysesthesias. The August 2021 examiner found normal sensory function. Moreover, the Board observes that the August 2021 examiner found that there was only mild incomplete paralysis of the posterior tibial nerve, casting doubt on the initial conclusion of impingement of multiple nerves. After considering the totality of the evidence, a higher or separate rating is not for application. See 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8621. The Board has reviewed the Veteran's VA medical records. However, such records do not show evidence of functional impairment to the extent that a higher rating may be assigned for nerve impingement of the left ankle. For example, the Veteran was evaluated by his primary care team in 2019, 2020, and 2021, but the clinicians indicated that his neurological system was negative for any paralysis. In August 2019, an evaluation explicitly found that the Veteran's sensory system was normal. This evidence does not suggest functional impairment indicative of a higher rating. The Board is also aware that the Veteran is currently rated under 38 C.F.R. § 4.124a, DC 8621 for neuritis of the external popliteal nerve. The August 2021 examiner found that the Veteran exhibited only mild incomplete paralysis of the posterior tibial nerve, which is rated under DC 8525. However, as the Veteran would not be entitled to a higher rating under either diagnostic code, the Board will not disturb the choice of diagnostic code herein. 38 C.F.R. § 4.7. The Veteran's lay statements were considered. Nevertheless, disability ratings are determined by the application of the rating schedule, which does not support higher or separate ratings for the Veteran's disorder. In sum, as the preponderance of the evidence is against the claim, the appeal may not be granted. 2. Entitlement to a rating in excess of 10 percent for chronic left ankle strain with loss of motion associated with sinus tarsi syndrome Prior to the regulatory changes, 38 C.F.R. § 4.71a, DC 5271 rated "moderate" limitation of motion of the ankle at 10 percent; and "marked" limitation of motion of the ankle at 20 percent. Terms such as "moderate" and "marked" are not defined in the prior version of the Rating Schedule. Absent an express definition in the rating schedule, words in the regulations are presumed to carry their ordinary dictionary meaning. Moderate is defined as "of average or medium quality, amount, scope, range, etc." See Webster's New World Dictionary 913 (2nd College Ed. 1986). Marked is defined as "noticeable; obvious; appreciable; distinct; conspicuous." Id. at 868. Rather than applying a mechanical formula, VA must evaluate all evidence so that decisions will be equitable and just. Although the use of similar terminology by medical professionals should be considered, it is not dispositive. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. After the regulatory changes, 38 C.F.R. § 4.71a, DC 5271 provided specific definitions for "moderate" and "marked". The term "moderate" is considered to mean less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. The term "marked" is considered to mean less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Board will apply the old criteria as they do not set bright line definitions for marked and moderate, and, thus, are potentially more favorable to the Veteran based on the evidence of record. After careful review of the record, the Board finds that the evidence does not support a rating in excess of 10 percent for limited motion due to a left ankle strain. See 38 C.F.R. § 4.71a, DC 5271. The Board has considered VA examination reports in November 2013, July 2017, and August 2021. In November 2013, the Veteran's range of motion of the left ankle was 45 degrees or greater of plantar flexion and 10 degrees of dorsiflexion. He performed repetitive use testing without additional functional loss. The examiner found functional loss including less movement than normal, pain on movement, swelling, interference with sitting, standing, or weightbearing. Muscle strength testing was normal and there was no ankylosis of the joint. In July 2017, range of motion of the left ankle was normal. No pain was noted on examination. The Veteran performed repetitive use testing without additional functional loss. He reported flare-ups, but the examiner found that he was unable to opine as to functional loss during such periods without resorting to speculation. Muscle strength testing was normal and there was no ankylosis of the joint. In August 2021, range of motion of the left ankle was 30 degrees plantar flexion and 15 degrees dorsiflexion. There was evidence of pain on weightbearing causing functional loss, but no pain on active or passive motion. The Veteran performed repetitive use testing without additional functional loss. The examiner considered the Veteran's reports of impairment with flare-ups and after repeated use over time, and found that the Veteran would suffer additional loss after repeated use over time equivalent to 30 degrees plantar flexion and 15 degrees dorsiflexion and additional loss during flare-ups equivalent to 20 degrees plantar flexion and 10 degrees dorsiflexion. There was no muscle atrophy or any ankylosis of the ankle joint. The above findings do not suggest functional impairment equivalent to marked limitation of the ankle to the extent that a higher rating could be assigned. See 38 C.F.R. § 4.71a, DC 5271. Specifically, the Veteran's lowest documented range of motion outside of flare-ups was found to be 30 degrees plantar flexion and 15 degrees dorsiflexion, without evidence of pain on active or passive motion. This is not consistent with marked limitation of motion of the left ankle to the extent contemplated by a higher rating. Id. The Veteran's reports of functional loss with flare-ups and after repeated use over time were considered. The August 2021 examiner found, based on his examination and the Veteran's lay reports, that the Veteran would experience 20 degrees of plantar flexion and 10 degrees of dorsiflexion during flare-ups. Such a range of motion does not suggest marked limitation of motion during flare-ups to the extent that a higher rating is applicable. See Mitchell, 25 Vet. App. at 43. Specifically, as full range of motion of the ankle is 45 degrees plantar flexion and 20 degrees dorsiflexion, the Veteran's lowest manifestations of 20 degrees plantar flexion and 10 degrees dorsiflexion during flare-ups would constitute about half the normal range, consistent with a moderate or average limitation of motion. 38 C.F.R. § 4.7. The Board has reviewed the Veteran's VA medical records. Such records do not show functional impairment to the extent that a higher rating may be assigned. For example, the Board notes that the Veteran was found to have full range of motion of the extremities during a VA primary care evaluation in March 2020. Moreover, although the Veteran reported left foot pain to his VA clinicians, the Board observes that the record does not contain specific reports of left ankle symptoms that would support a higher evaluation. The Veteran's lay statements were considered. Nevertheless, disability ratings are determined by the application of the rating schedule, which does not support higher or separate ratings for the Veteran's disorder. In sum, as the preponderance of the evidence is against the claim, the appeal may not be granted. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, Associate 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.