Citation Nr: 21076234 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-43 222 DATE: December 22, 2021 ORDER An initial disability rating in excess of 10 percent for right ankle sprain is denied. An initial disability rating in excess of 10 percent for thoracolumbar spine strain is denied. FINDINGS OF FACT 1. Since the grant of service connection, the Veteran's right ankle disability has been manifested by full range of motion (even during flare-ups) with subjective reports of pain and objective reports of some tenderness to palpation considered to be no more than moderately disabling. 2. Since the grant of service connection, the Veteran's thoracolumbar spine strain disability has been manifested by full range of motion (even during flare-ups) with subjective reports of pain and objective reports of some tenderness to palpation. It has not resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine was not greater than 120 degrees, even in consideration of functional loss based on pain, fatigue, weakness, lack of endurance, and/or incoordination after repetitive use; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; intervertebral disc syndrome with incapacitating episodes; or neurologic impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for right ankle sprain 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 (DC) 5271. 2. The criteria for an initial disability rating in excess of 10 percent for thoracolumbar spine strain 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, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2010 to October 2016. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for right ankle strain and thoracolumbar spine strain, assigning separate 10 percent disability ratings, each effective October 7, 2016. The Veteran disagreed with this decision and perfected this appeal. This case was previously before the Board in November 2019 at which time the case was remanded for additional development. General Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Also, the United States Court of Appeals for Veterans Claims (Court) has 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). 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Furthermore, pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Effective February 7, 2021, several changes to the diagnostic codes used for rating musculoskeletal disabilities were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. While the Veteran has not yet been notified of all applicable regulatory changes and considered his claim under such regulations, the Board notes that the rating criteria prior to February 7, 2021 pertaining to the ankles and lumbar spine are significantly more favorable to the Veteran. As such, there is no prejudice to the Veteran in the Board considering the claims at this time. 1. An initial disability rating in excess of 10 percent for right ankle sprain is denied. The Veteran's right ankle disability is currently rated under 38 C.F.R. § 4.71a, DC 5271 for ankle limitation of motion. Specifically, DC 5271 provides for a 10 percent rating where there is moderate limitation of ankle motion and a 20 percent rating where there is marked limitation of ankle motion. Notably, normal ankle dorsiflexion is from 0 to 20 degrees and normal plantar flexion is from 0 to 45 degrees. 38 C.F.R. § 4.71a. Plate II. Also relevant are DCs 5270, 5272, 5273, and 5274. DC 5270 pertains to ankylosis of the ankle and provides for a 20 percent rating where there is ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted where there is ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A 40 percent rating is warranted where there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. DC 5272 pertains to ankylosis of the subastragalar or tarsal joint, and provides for a 10 percent rating where such is in good weight-bearing position and a 20 percent rating where such is in poor weight-bearing position. DC 5273 pertains to malunion of the os calcis or astragalus, and provides for a 10 percent rating where there is moderate deformity and a 20 percent rating where there is marked deformity. DC 5274 provides for a 20 percent rating for an astragalecotmy. Notably, beginning February 7, 2021 DC 5271 clarifies the meanings of marked and moderate. Specifically, a 10 percent rating where there is moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) limitation of ankle motion and a 20 percent rating where there is marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) limitation of ankle motion. By way of history, the Veteran's service treatment records show that he injured his right ankle in approximately September 2014. Significantly, a September 2016 report of medical history notes a "September 2014 high ankle sprain/ fracture/ internal bleeding." Furthermore, the Veteran's September 2016 separation examination shows ankle pain, including when running. The Veteran submitted an initial claim for service connection for a right ankle disability prior to his discharge in September 2016. In connection with this claim, he was afforded a VA ankle examination in October 2016. At that time, the examiner diagnosed chronic right ankle pain, noting an onset in September 2014. The Veteran reported injuring the right ankle in September 2014 but that he had stopped using an ankle brace and was not using pain medications. He reported having flare ups when running or jumping. Initial range of motion (ROM) testing was normal, with dorsiflexion 0 to 20 degrees and plantar flexion 0 to 45 degrees. There was pain on dorsiflexion which did not result in functional loss. There was also pain on weight-bearing and the right ankle was moderately tender over the medial joint line. There was no change after three repetitions. The examiner said that she was unable to determine functional impairment with repeated use over time or during flare ups without speculating. There were no additional factors contributing to the Veteran's disability. Stability testing was normal and there were no other pertinent physical findings. A right ankle X-ray dated September 2014 was negative. There was pain on passive ROM testing but no pain when not bearing weight. In an October 2019 Informal Hearing Presentation, the Veteran's representative noted that the Veteran's right ankle disorder impeded his running and normal exercises and requested a new VA examination. Pursuant to the November 2019 Board remand, the Veteran was afforded a second VA ankle examination in February 2020. At that time, the examiner diagnosed right ankle sprain. The current symptoms were pain after running and standing for long periods of time, and the current treatment was stretching. The Veteran reported that the right ankle bothered him and was painful at work and at the gym. The Veteran reported daily, severe flare ups which continue until he stops activity and waits for the flare up to end. He said that they are precipitated by work and exercise and he said that they are alleviated by time and stretching. The Veteran reported functional loss in running. Initial ROM testing was all normal (dorsiflexion 0 to 20 degrees, plantar flexion 0 to 45 degrees) with pain on dorsiflexion and plantar flexion movements but not resulting in functional loss; there was also pain on weight-bearing but no localized tenderness or pain to palpation or crepitus. There was no change after three repetitions. With repeated use over time, pain significantly limited the Veteran's functional ability but the ROM remained normal. During flare ups, the ROM remains normal and pain limits the Veteran's functional ability (but not fatigue, weakness, lack of endurance, or incoordination), and there were no additional factors such as swelling or deformity. Muscle strength testing was normal (5/5) on both movements and there was no muscle atrophy. Ankle instability was suspected but no laxity was found on the anterior drawer test or talar tilt test. Diagnostic testing showed no evidence of degenerative or traumatic arthritis. In terms of functional impact, the Veteran reported pain with standing for long periods. The examiner noted that there was objective evidence of pain on passive range of motion testing of the right ankle and non-weight bearing testing of the right ankle. A February 2020 X-ray of the right ankle found no fracture or significant bone, joint, or soft tissue anomaly, and no degenerative joint disease. Upon review of the above, the Board finds that an initial disability rating greater than 10 percent for the right ankle is not warranted. Significantly, the Veteran's right ankle disability are productive of no more than moderate limitation of motion. As above, during the October 2016 and February 2020 VA ankle examinations, the Veteran had normal ROM of the right ankle in both planes. Such findings demonstrate, at most, moderate limitation of motion, even considering the Veteran's complaints of pain. Therefore, the overall disability picture presented by the Veteran's right ankle disability is that of moderate limitation of motion, which is appropriately rated as 10 percent disabling under DC 5271. The Veteran's disability picture does not present such severe limitation of motion to the ankle to be characterized as marked limitation. Thus, a 20 percent disability rating under DC 5271 is not warranted. With regard to the potential for higher ratings based on additional loss of motion due to flare-ups of the right ankle pursuant to Sharp, while the Veteran did report a history of flare-ups, the February 2020 VA examiner specifically indicated that there was no additional loss of motion during flare-ups beyond that that which was already noted above. The Board also finds that a separate or higher rating is not warranted based upon any other diagnostic code. There is no indication of either ankylosis, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy such that DCs 5270, 5272, 5273, and 5274 are not for application. There are no other alternative diagnostic codes under 38 C.F.R. § 4.71a that could apply to the Veteran's right ankle disorder. The Board recognizes the Veteran's complaints of pain and functional loss as a result of his right ankle disability, notably his pain and his difficulty running (see DeLuca). Although functional loss is shown from the Veteran's pain, the Veteran did not demonstrate fatigability, weakness, incoordination, swelling, deformity, or other additional factors of functional impairment. As the preponderance of the evidence is against an initial rating in excess of 10 percent for the right ankle at any time during the appeal period, the claim is denied. 2. An initial disability rating in excess of 10 percent for thoracolumbar spine strain is denied. Lumbar spine disabilities are rated using the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Rating Formula). 38 C.F.R. § 4.71a, DC 5237. The General Rating Formula provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted in cases of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Under the IVDS Rating Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. By way of history, the Veteran's service treatment records show complaints of recurrent back pain. Specifically, in a September 2016 report of medical history, the Veteran reported a history of "recurrent back pain" but denied "numbness or tingling." Notes say that he had low back pain after sitting. Also, the Veteran's September 2016 separation examination described the spine as abnormal, finding "mild lumbar spasm" and low back pain. The Veteran submitted an initial claim for service connection for a right ankle disability prior to his discharge in September 2016. In connection with this claim, he was afforded a VA ankle examination in October 2016. At that time, the examiner diagnosed lumbar strain. The Veteran reported that his back bothers him when driving, resulting in shooting pain in the lower back after about 20 minutes. The Veteran said that the pain radiates to both sides of his back, forcing him to shift positions to ease the pain. He reported flare ups when sitting and driving and said that it feels like a knife stabbing him in his back intermittently. Initial ROM testing was normal, with forward flexion 0 to 90 degrees, extension 0 to 30 degrees, right and left lateral flexion 0 to 30 degrees, and right and left lateral rotation 0 to 30 degrees, with pain noted on all movements but not resulting in functional loss. There was no pain on weight-bearing. The spine was mildly tender over the lumbar vertebra and bilateral paraspinal regions. There was no change after three repetitions. Concerning repeated use over time and flare ups, the examiner said that she could not describe the range of motion without resorting to speculation. The Veteran had guarding which did not result in an abnormal gait or abnormal spinal contour; there was no muscle spasm. There were no additional factors contributing to disability except interference with sitting. Muscle strength testing was normal. Deep tendon reflexes were normal and sensation to light touch was normal in the bilateral thighs, knees, ankles, and feet. Straight-leg raising test was normal. There was no evidence of radiculopathy. October 2016 X-rays of the lumbosacral spine showed "a mild loss of height of the anterior aspect of L1 which may be developmental or incomplete formation of the secondary growth centers, or from an old injury. It does not appear to be acute. There is a mild kyphotic curvature at the lumbosacral junction related to this. The vertebral bodies are otherwise normal in height and alignment. There is no disc space narrowing or spondylosis. There is no scoliotic curvature noted. The sacroiliac joints also appear within normal limits as do the visualized portions of the hip joints. No pars defects are noted." Subsequent VA treatment records including December 2017 report ongoing back pain. In an October 2019 Informal Hearing Presentation, the Veteran's representative indicated that the Veteran's back strain prevented him from sitting or standing for extended periods and limited the time he was able to drive a vehicle. The Veteran's representative requested a new VA examination. Pursuant to the November 2019 Board remand, the Veteran was afforded a second VA spine examination in February 2020. At that time, the examiner diagnosed thoracolumbar spine strain. The Veteran reported current symptoms of pain and stiffness and said that he was receiving chiropractic treatment and said that the condition affects his work and driving. He also reported severe flare ups every day for a varying duration each time and said the flare ups are caused by sitting or bending over and alleviated sometimes by chiropractic treatment. Initial ROM testing was normal. The Veteran reported pain on movement causing functional loss on forward flexion, right lateral flexion, left lateral flexion, and left lateral rotation, but not on extension or right lateral rotation. There was no change after three repetitions. With repeated use over time, there was no change in ROM and the Veteran's functional ability was limited by pain but not weakness, fatigability, or incoordination. Flare-ups also resulted in no change in ROM and the Veteran's functional ability was limited by pain but not weakness, fatigability, or incoordination. There was no guarding or muscle spasm, and no additional factors contributing to disability such as less or swelling or deformity. Muscle strength was normal (5/5) in bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension, and there was no muscle atrophy. Reflexes were normal in the right and left knees. Sensation to light touch was normal in the bilateral thighs, knees, ankles, and feet. Straight-leg raising test was normal bilaterally and there were no signs or symptoms of radiculopathy. There was no ankylosis and the Veteran did not have intervertebral disc syndrome (IVDS). The Veteran did not use assistive devices for his back condition. Diagnostic testing showed no arthritis and there was no thoracolumbar vertebral fracture with loss of 50 percent or more of height, and no other significant diagnostic test findings or results. In terms of functional impact, the Veteran had pain after sitting more than 20 minutes at a time. The examiner noted that there was objective evidence of pain on passive range of motion and non-weight bearing testing of the back. Upon review of the evidence, the Board finds that an initial rating higher than 10 percent is not warranted for the Veteran's lumbar spine disability is not warranted. As above, under the General Rating, the next higher 20 percent rating is assignable where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees. Significantly, ROM testing for the thoracolumbar spine during October 2016 and February 2020 VA examinations showed full lumbar flexion to 90 degrees. There are no other ROM findings. Thus, a 20 percent disability rating under DC 5237 is not warranted. With regard to the potential for higher ratings based on additional loss of motion due to flare-ups of the back pursuant to Sharp, while the Veteran did report a history of flare-ups, the February 2020 VA examiner specifically indicated that there was no additional loss of motion during flare-ups beyond that that which was already noted above. The Board recognizes the Veteran's complaints of pain and functional loss as a result of his low back disability, notably his pain and his difficulty running, and remaining seated or standing for more than 20 minutes (see DeLuca). Although functional loss is shown from the Veteran's pain, the Veteran did not demonstrate fatigability, weakness, incoordination, swelling, deformity, or other additional factors of functional impairment. Regarding Footnote 1 to the General Rating Formula for Disabilities and Injuries of the Spine, the Board notes that the Veteran has not reported radiculopathy of the lower extremities, there is no evidence of neurological disability in his treatment records, and both the October 2016 and the February 2020 VA spine examinations stated that there is no evidence of radiculopathy. As such, a separate compensable rating for neurological disability of the lower extremities is not warranted. Additionally, there is no indication that the Veteran has experienced any bowel or bladder problems, and a separate compensable rating on that basis is also not warranted. Also, with regard to the possibility of a higher rating under the criteria for IVDS, the record does not indicate any incapacitating episodes or bed rest prescribed by a physician. As the preponderance of the evidence is against an initial rating in excess of 10 percent for the lumbar spine at any time during the appeal period, the claim is denied. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.