Citation Nr: 21076829 Decision Date: 12/28/21 Archive Date: 12/27/21 DOCKET NO. 16-45 588 DATE: December 28, 2021 ORDER Entitlement to an increased rating, in excess of 20 percent, for service-connected right ankle disability with traumatic arthritis is denied. FINDING OF FACT The Veteran's right ankle disability with traumatic arthritis is manifested by marked limited motion of the ankle. There is no evidence of ankylosis. CONCLUSION OF LAW The criteria for an increased rating, in excess of 20 percent, for service-connected right ankle disability with traumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5010-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1989 to October 1994. In November 2018, he testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The claim was most recently before the Board in June 2021. There has been substantial compliance with the remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In evaluating 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). Weakness is as important as limitation of motion, and a part which 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. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran submitted a claim for increased rating in December 2011. After affording Veteran a VA examination, the Agency of Original Jurisdiction (AOJ) reduced the then-20 percent evaluation to 10 percent. The Veteran appealed the reduction to the Board. In a July 2019 decision, the Board found the reduction was no proper and the 20 percent rating was restored, effective January 1, 2013. In that same decision, the Board remanded the Veteran's claim for increased rating for an examination. The Board remanded the claim multiple times, most recently in June 2021 to obtain an adequate examination. The Veteran's ankle disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5271 for limitation of motion of the ankle. During the pendency of the appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the version of Diagnostic Code 5271 in effect prior to February 7, 2021, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. Under the version of Diagnostic Code 5271 in effect from February 7, 2021, marked and moderate limitation of motion are defined. Marked limitation of ankle motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion; moderate limitation of motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2021). The other diagnostic codes pertaining to the ankle are unchanged. Turning to the evidence, in January 2012, the Veteran submitted a December 2011 private treatment note in which the Veteran reported having right ankle pain, rated as 8 out of 10. X-rays revealed that the Veteran has "severe arthritis of the tibiotalar joint." In November 2012, the Veteran submitted an October 2012 private treatment note. The examiner noted mild anterior swelling and thickening of the ankle. On range of motion testing, right ankle plantar flexion was to 0-30 degrees, right ankle dorsiflexion was to 0-5 degrees. Ankle x-rays showed space narrowing, sclerosis and spurring suggestive of degenerative joint disease. At the hearing, the Veteran testified that he experiences ankle pain, and his range of motion is limited. The Veteran also testified that his doctor told him that his condition was worsening because the amount of cartilage between his bones was diminishing. The Veteran's representative noted the differences in rating criteria with respect to DC 5270 (ankle, ankylosis) and 5271 (ankle, limited motion) prior to the February 7, 2021 update. In January 2020, the Veteran submitted an October 2016 private treatment note in which the Veteran's muscle strength testing was 5 out of 5 for plantar flexion and dorsiflexion. The Board remanded the claim several times, most recently in June 2021 because prior VA medical examinations were inadequate. See February 2012, November 2015, January 2020, and May 2021 VA examinations. Specifically, prior VA medical examinations did not consider the Veteran's reports of flare-ups, or they failed to comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the results from those examinations, during the course of the appeal, are afforded no probative value. In a July 2021 VA examination, the Veteran reported severe flare-ups that occur 1-2 times per month, last 2-3 days at a time, and are precipitated by too much exertion. The flare-ups are alleviated by smoking cannabis, alcohol, and rest and elevation. The Veteran described the functional impairment as "moderate with pain from time to time." The Veteran described pain "with weight bearing of the right ankle as 6-7/10 and non weight bearing 5/10." There was no instability. On range of motion testing, both active and passive, right ankle plantar flexion was to 10 degrees; dorsiflexion to 20 degrees, with pain. There was evidence of pain with weight-bearing, active motion, passive motion, and pain that causes functional loss. There was no additional loss of motion after repetitive use or repeated use over time. The examiner said weight-bearing, active motion and passive motion caused right ankle pain, which affects the Veteran's functional ability to walk, stand and drive. The examiner estimated that during flare-ups, range of motion was plantar flexion to 10 degrees and dorsiflexion to 5 degrees. The right ankle interfered with standing, sitting and locomotion. The examiner specifically noted there was no muscle atrophy or ankylosis. Joint stability testing was normal, but the Veteran did use a brace. VA treatment records throughout the period on appeal note that the Veteran consistently reported right ankle pain and swelling. The Board the criteria for an increased rating are not met or more closely approximated at any time during the appeal period. With consideration of pain, range of motion is shown as, at worst to 10 degrees plantar flexion and 5 degrees dorsiflexion. See July 2021 examination. The currently assigned 20 percent rating is the maximum schedular rating for limited motion of the ankle, under both versions of rating criteria. The Board has considered whether any other diagnostic codes related to ankle disabilities would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.71a. Specifically, there is no evidence of ankle ankylosis during this period. Ankylosis is defined in general as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28TH Ed. 1994) at 86). A claimant may be entitled to a rating based on ankylosis if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, 34 Vet. App. 1 (2021). Even considering ankle pain and the other functional factors, the Veteran did not experience the functional equivalent of ankle ankylosis at any time during the appeal period. Even considering the pain and functional limitations, the Veteran's ankle symptoms were not so disabling to actually or effectively result in immobility or fixation of the ankles at any point in the ranges of ankle motion. In deciding the claims, the Board has also considered the Veteran's lay statements that his disability is worse than currently evaluated. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. Accordingly, the Board finds that the preponderance of the evidence weighs against assignment of a rating in excess of 20 percent for the Veteran's right ankle disability. 38U.S.C. §5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.