Citation Nr: 21072223 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-42 498 DATE: December 2, 2021 ORDER For the entire period prior to October 19, 2015, a rating of 20 percent, but no higher, for residuals of a left ankle fracture is granted. FINDING OF FACT Prior to October 19, 2015, the Veteran's service-connected left ankle disability manifested by marked limitation of motion; ankylosis or deformity of the ankle is not demonstrated by the record. CONCLUSION OF LAW Prior to October 19, 2015, the criteria for an initial 20 percent disability rating for the Veteran's residuals of a left ankle fracture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71(a), Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board, in relevant part, denied entitlement to a rating in excess of 10 percent prior to October 19, 2015 for a left ankle disability. The Veteran appealed the service connection claim for left ankle arthritis and the denial of a rating in excess of 10 percent prior to October 19, 2015 to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court issued an Order granting a Joint Motion for Partial Remand. That Order, in pertinent part, vacated and remanded the portion of the October 2018 Board decision that denied entitlement to service connection for degenerative arthritis of the left ankle, and a rating in excess of 10 percent for left ankle residuals for the period prior to October 19, 2015. The Veteran waived his appeal of the portion of the Board's decision denying an evaluation in excess of 20 percent for a left ankle disability from October 19, 2015. In February 2020, the Board granted service connection for left ankle arthritis and remanded the issue of a rating in excess of 10 percent for the left ankle disability prior to October 19, 2015 for further development. In May 2021, the Board remanded the claim again, instructing the AOJ to obtain any determination letter and medical records pertinent to the Veteran's Social Security Administration (SSA) disability benefits. In September 2021, a determination letter from SSA (dated in January 2014) documents that the Veteran is in receipt of social security disability benefits for disorders of the back (discogenic and degenerative) and inflammatory arthritis. As such, the Board finds that there has been substantial compliance with the Board's May 2021 remand directives. Thus, further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection, which for the left ankle was in August 2010. Fenderson v. West, 12 Vet. App. 119 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of evidence in light of the entirety of the record. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Prior to October 19, 2015, the Veteran's residuals of a left ankle fracture are rated under Diagnostic Code 5271, limited motion of the ankle. 38 C.F.R. § 4.71a. Under this Diagnostic Code a 10 percent rating is warranted with moderate limited motion and a 20 percent rating is warranted under marked limited motion. Normal range of motion of an ankle is to 20 degrees of dorsiflexion and to 45 degrees of plantar flexion. 38 C.F.R. § 4.71 Plate II. While the schedule of ratings does not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can 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. When a rating of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors. Those factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Entitlement to a Rating in Excess of 10 Percent for Residuals of a Left Ankle Fracture for the Period Prior to October 19, 2015 The Veteran contends that a rating in excess of 10 percent is warranted for residuals of a left ankle fracture for the period prior to October 19, 2015. Again, the Veteran is in receipt of a 10 percent rating under Diagnostic Code 5271 for this period. Turning to the evidence of record, a November 2010 VA examination report showed no objective evidence of left ankle pain or swelling. X-ray findings revealed that the fracture was well healed without evidence of arthritis. Physical examination revealed normal dorsiflexion to 20 degrees, as well as reduced left plantar flexion from 0 to 20 degrees. The Veteran did not have ankylosis and the Veteran's left ankle disorder did not affect his usual daily activities or usual occupation. In a December 2010 addendum to the November 2010 VA examination, the VA examiner noted that while x-rays of the ankle showed an old fracture, they did not show any significant arthritic changes. An August 2011 private chiropractic note, authored by J.H., shows that the Veteran had decreased range of motion in his left ankle. An October 2011 VA treatment note shows that the Veteran had pain in his left ankle with active and passive ranges of motion. In an October 2011 private treatment letter, Dr. G.H. noted that the Veteran's left ankle disorder caused marked limitation of motion. Also, in a March 2012 private treatment letter, Dr. G.H. stated that the Veteran presented to his office on August 2011 with subjective complaints of, in relevant part, left ankle pain. Dr. G.H. noted that the Veteran had decreased range of motion in his left ankle along with edema and tenderness. Dr. G.H. also stated that there the Veteran's radiology findings appeared to show "malunion of the fibula (distal), along with large amounts of arthrity along some areas of the distal fibula and lateral talus bone." In an April 2012 private medical letter, Dr. D.H. expressed disagreement as to the findings made by the November 2010 VA examiner. Here, Dr. D.H. stated that the Veteran had numbness in his entire left side. She also stated that the Veteran was seeing another physician to control edema to the left ankle and that there was "tremendous loss of motion, verified by testing as well as visual observation over a period of several years regarding gait and stopped posture." An April 2013 VA treatment note shows that the Veteran presented with complaints of left ankle swelling. The Veteran also reported that he had sharp, constant, and occasionally unbearable pains in the ankle, just above the outer aspect which radiated to the anterior aspect of the lower leg. In evaluating the medical and lay evidence of record, the Board finds that, overall, the limitation of left ankle motion demonstrated more nearly approximates "marked" limitation of the left ankle for the period prior to October 19, 2015. Here, the Board acknowledges the November 2010 VA examination report in which the Veteran was noted to have had normal left dorsiflexion (0 to 20 degrees) and abnormal plantar flexion (0 to 20 degrees), as well as the notation that there was no objective evidence of pain with active motion. However, the examiner did not conduct range of motion testing in active and passive motion in weight-bearing and non-weight bearing. Thus, this examination is therefore inadequate for review and the Board affords it little to no probative weight. See Correia v. McDonald, 21 Vet. App. 158 (2016). Evidence in support of the claim includes the October 2011 private treatment letter in which Dr. G.H. expressly stated that the Veteran's ankle disorder caused marked limitation of motion. Further, Dr. D.H., in April 2012, not only disagreed with the findings noted in the November 2010 VA examination, but she also stated that the Veteran had "tremendous loss of motion" verified by testing and visual observation over a period of several years. The Board finds this medical evidence to be highly probative. The Board further notes that a 20 percent rating is the highest rating available under Diagnostic Code 5271, and the reported functional impairment has already been considered in the 20 percent rating being assigned. Additionally, the Board has considered whether a higher or separate rating is warranted under another diagnostic code, but there has been no ankylosis shown pursuant to Diagnostic Code 5270. Therefore, a rating in excess of 20 percent is not warranted for the period prior to October 19, 2015. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.