Citation Nr: 21076855 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 11-24 898 DATE: December 28, 2021 ORDER Entitlement to an increased rating higher than 10 percent for left ankle sprain is denied. Entitlement to an increased separate rating of 20 percent, but no higher, for left ankle instability is granted, effective September 15, 2009, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's residuals of a left ankle sprain have been manifested by, at most, moderate limitation of motion, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy. 2. For the entire appeal, the Veteran's left ankle disability is manifested by moderate instability. CONCLUSIONS OF LAW 1. The criteria for an increased rating higher than 10 percent for residuals of a left ankle sprain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for an increased separate rating of 20 percent, but no higher, for left ankle instability are met, effective September 15, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5299-5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service in the United States Marine Corps from November 1990 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in June 2017. In June 2019, the Board, in pertinent part, denied the claim for increased ratings for chronic left ankle sprain and left ankle instability. The Veteran appealed the Board's decision insofar as it denied the increased ratings for chronic left ankle sprain and left ankle instability. Pursuant to a joint motion for partial remand (JMPR), in March 2020 the U.S. Court of Appeals for Veterans Claims (Court) vacated the Board's June 2019 decision and remanded the case back to the Board. The JMPR found that while the Veteran had undergone multiple VA examinations addressing his chronic left ankle sprain in July 2014, September 2016, and December 2017, all of the examinations were deficient in some respect. Specifically, it was determined that none of the VA examinations regarding the Veteran's chronic left ankle sprain complied with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (did not contain passive range of motion measurements/pain on weight-bearing testing); or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (the examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups; or indicate that any speculation was due to lack of knowledge within the medical community.). The JMPR found that the Board did not adequately define the criteria for determining whether the Veteran's left ankle instability was not more than slight. Specifically, it was mentioned that the Board should consider the Veteran's hearing testimony in June 2017 that he would roll his ankle pretty frequently, and the notations on VA examinations in July 2014 and December 2017 that the Veteran used a cane. In August 2020, the Board remanded the case and noted that given that the case was being remanded for another VA examination to address the chronic left ankle sprain, the examination also should address the present severity of the Veteran's left ankle instability. The Board directed that the VA examination for the ankle disability include a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner was to test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner also was to attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. An October 2021 VA examination report was provided, which noted the Veteran's active and passive ranges of motion, and also noted whether there was pain on weight-bearing and without weight-bearing. The examiner also commented on functional loss during flare-ups. The directives of the Board's August 2020 remand having been substantially complied with, the case is now returned for appellate review. Additional VA treatment records and examination reports were added to the Veteran's file after the last Supplemental Statement of the Case. A remand is not warranted, however, as the VA medical records are not relevant to the Veteran's left ankle disability. See 38 C.F.R. § 20.1305(c). Increased Rating 1. Entitlement to an increased rating higher than 10 percent for left ankle sprain The Veteran contends that he is entitled to a higher rating for his left ankle sprain. He testified at the Board hearing that after injuring his left ankle by stepping into a hole and twisting it he continues to have a lot of problems with swelling, pain, and rolling the ankle. See June 2017 Board hearing transcript, p. 3. He noted that the swelling and pain made it so that he could not put pressure on the ankle sometimes. Id. He further noted that he occasionally wore a brace for his left ankle. Id. at 5. He stated that he worked as a respiratory therapist in a hospital, which required a lot of walking and pushing around a heavy medical cart to go into rooms to give patients treatment. Id. at 9-10. He further testified that he had missed about 8 to 10 days a year from work because of his ankle disability. Id. at 10. The Veteran has two separate ratings for his left ankle disability: one rating based on limitation of motion of the ankle (Diagnostic Code 5271); and the other based on instability of the ankle (Diagnostic Codes 5299-5257), which is discussed in more detail in the next section. The Veteran's left ankle sprain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. While "marked" and "moderate" are not described in the rating criteria as in effect prior to February 7, 2021, the revised criteria do provide useful guidance for the criteria in effect prior to the effective date of the revised provisions. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the left ankle sprain. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and instability. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he would sometimes not be able to put pressure on the ankle due to pain and swelling would not result in symptoms more nearly approximating limitation so distinctive or emphasized that it would approximate marked limited motion. A January 2010 VA examination report shows the Veteran reported having problems with his left ankle since a bad ankle sprain in service. He reported having daily left ankle pain with worsening symptoms with activity. He noted that the pain ranged from a 5 up to an 8 out of 10 in intensity. He had decreased range of motion in the left ankle and recurrent swelling and instability. He had never had any surgery, injections, or therapy on the left ankle. He had significant pain at work as a respiratory therapist. The pain slowed him down and affected his productivity because he had difficulty standing and walking for long periods. He also occasionally had to miss work because of his left ankle pain and swelling. He denied activities of daily living being affected and denied flare-ups. He also did not use assistive devices. On physical examination, he had dorsiflexion to 5 degrees and plantar flexion to 30 degrees, with inversion to 20 degrees and eversion to 10 degrees, all of which were with pain throughout the entire range of motion. His range of motion was not additionally limited following repetitive use on the examination. He had slight instability of the left ankle with drawer testing as well as with inversion and had a large effusion on the lateral aspect of the left ankle, which was not warm or red, but it was large. He had 4+ out of 5 strength in the left ankle. He had tenderness to palpation over the lateral malleolus extending down into the anterior talofibular ligament complex. The medial malleolus was nontender. Previous plain films of the left ankle showed a talar exostosis suggestive of previous damage and degenerative disease. The diagnoses were chronic left ankle instability secondary to recurrent sprains and degenerative joint disease of the left ankle. The Veteran was afforded additional VA examinations in July 2014, September 2016, and December 2017. At the July 2014 examination, the examiner noted that the Veteran had plantar flexion to 20 degrees and dorsiflexion to 15 degrees. The Veteran performed the repetitive use testing with no loss of range of motion. The Veteran had pain, fatigue, weakness, or lack of endurance during range of motion testing, including after repetitive use testing. The examiner noted that the Veteran used an ankle brace but did not have any abnormal anatomical findings noted on x-ray and imaging. The examiner found no ankylosis. The examiner noted that while the Veteran reported additional limitation by pain, fatigue, and decreased range of motion during flare-ups, there was no limitations noted within the Veteran's record and no progressive limitations demonstrated with repeated range of motion testing during the examination. The examiner opined that he would have difficulty quantifying in degrees the amount of these limitations without resulting to mere speculation. The Veteran attended another VA examination in September 2016. The examiner noted that plantar flexion was to 45 degrees with no pain and dorsiflexion to 20 degrees with no pain. The Veteran performed the repetitive use testing with no loss of range of motion. The Veteran had no pain, fatigue, weakness, or lack of endurance during range of motion testing, including after repetitive use testing. There was no pain when the Veteran put weight on the joint. The Veteran was noted to have full ankle strength in both plantar and dorsiflexion positions and that the ankle was stable, and no instability was suspected. The Veteran reported experiencing flare-ups with sharp achy pain when putting pressure on it. There was no ankylosis of the left ankle. On examination in December 2017, the Veteran's left ankle had plantar flexion to 40 degrees and dorsiflexion to 15 degrees. The examiner noted that there was pain on both plantar flexion and dorsiflexion on examination that caused functional loss. There was no noted pain with weight bearing and no evidence of crepitus. The examiner noted that the Veteran did have localized tenderness or pain on palpitation of the ankle and soft tissue. The examiner noted that the Veteran was able to perform repetitive use testing but there was no loss of function or range of motion after repetitions. The Veteran's left ankle showed no signs of ankylosis, muscle atrophy, or arthritis. The Veteran reported use of a cane as an assistive device occasionally. The Veteran reported experiencing flare-ups which limited walking. The examiner noted that there was no change in range of motion when tested passively. The Veteran reported pain during passive range of motion testing which signified pain when the joint was used on non-weight bearing. As noted in the introduction, the JMPR found that the examinations in July 2014, September 2016, and December 2017 were all deficient in some respect. Specifically, it was determined that none of the VA examinations regarding the Veteran's chronic left ankle sprain complied with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (did not contain passive range of motion measurements/pain on weight-bearing testing); or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (the examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups; or indicate that any speculation was due to lack of knowledge within the medical community.). After the case was remanded, another VA examination was provided in October 2021. The examiner noted that the Veteran had a diagnosis of degenerative arthritis of the left ankle. The Veteran noted that since his last examination the left ankle disability continued to worsen due to the nature of his job as a respiratory therapist. He noted that he had to walk and stand a lot. He reported missing two days of work in April due to swelling in the left ankle. Current symptoms included pain, popping, stiffness, sometimes painful to walk, and sometimes the ankle would twist on him randomly. He noted swelling would occur two to three times a month usually after prolonged use/ work. He would wear a brace at work. The Veteran did not report flare-ups of the ankle. Functional loss included not being able to run. He also noted that sometimes when walking he would roll his ankle and that the brace helped with instability. Range of motion studies showed plantar flexion to 30 degrees and dorsiflexion to 10 degrees on active range of motion. Passive range of motion was the same as active. Pain was felt on plantar flexion. The Veteran stated that ankle pain made it difficult to walk or stand for prolonged periods. His left ankle also was mildly tender to palpation at the lateral malleolus to anterior talofibular ligament. After repetitive use testing plantar flexion was to 20 degrees and dorsiflexion was to 5 degrees due to pain. The estimated range of motion in the left ankle after repeated use over time was plantar flexion to 30 degrees and dorsiflexion to 10 degrees. There was evidence of pain on passive motion that caused functional loss, but no evidence of pain on weight-bearing or non-weight-bearing. The Veteran reported that pain made it difficult for him to walk or stand for prolonged periods. Objective evidence of prolonged walking or standing was not observed during the visit. The Veteran claimed that he missed 20 days of work due to his service-connected left ankle conditions. He regularly used a brace for his ankle. Based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran's left ankle strain is not warranted as there is no evidence of marked limitation of motion, or functional loss or impairment that more nearly approximates marked limitation of motion. Specifically, while the Veteran has reported pain, swelling, and limitation in physical activities, his range of motion has been affected but more closely to a moderate degree. In this regard, the Veteran's dorsiflexion was limited to, at most 5 degrees, and his plantar flexion was limited, at most, to 20 degrees, to include as a result of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. In finding that the Veteran's limitation of left ankle motion does not more nearly approximate "marked" limitation of motion, the Board considers VA's proposed changed to Diagnostic Code 5271, which was published in February 2003. See 68 Fed. Reg. 6998. In the proposed regulation, VA noted that it hired an outside consultant to recommend changes "to ensure that the schedule uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review. The consultant convened a panel of non-VA specialists to review the portion of the rating schedule dealing with the musculoskeletal system in order to formulate recommendations." Id. Regarding Diagnostic Code 5271, VA noted that the terms "marked" and "moderate" are subjective and proposed to substitute more objective criteria that was recommended by the consultants. Specifically, it was proposed to assign a 20 percent rating if there was less than 5 degrees passive dorsiflexion or less than 10 degrees passive plantar flexion, and a 10 percent rating if there was less than 15 degrees of passive dorsiflexion or less than 30 degrees passive plantar flexion. Id. at 7018. It was noted that this change would promote consistent evaluations. Id. The Board finds the explanation of the proposed regulation to be persuasive. Significantly, VA consulted with specialist medical professionals who recommended objective criteria based upon current medical knowledge with the specific intent of ensuring more consistent outcomes for veterans. Thereafter, in August 2017, VA again proposed to change Diagnostic Code 5271. See 82 Fed. Reg. 35719. VA noted that the criteria set forth in Diagnostic Code 5271 are "subjective and the terminology is vague, resulting in inconsistent evaluations." VA proposed to define "marked" as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, and "moderate" as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. Id. at 35723. VA noted that, "[a]s VA currently uses these standards to define marked and moderate, this change is intended as clarification of current policy and would ensure consistent application of these criteria among rating personnel." Id. The Board, again, finds the explanation of the proposed regulation to be persuasive as VA is expressing its intent to codify a policy that was employed to ensure more uniformity among its rating personnel. Additionally, the proposed criteria were similar to those proposed in 2003, with the exception that the word "passive" was not included. Furthermore, in Dorland's Illustrated Medical Dictionary, 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise is "motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise of "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." Id. It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the veteran's joint farther than he would be able to move it on his own. Therefore, the omission of the word "passive" from the 2017 proposed regulation is likely more favorable to veterans, which causes the Board to be further inclined to employ its use. Moreover, in the most recent revision to Diagnostic Code 5271, effective February 7, 2021, VA codified the foregoing definitions of marked and moderate, defining the former as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, and the latter as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. Consequently, as the Veteran's dorsiflexion and plantar flexion were limited to, at most, 5 and 20 degrees, even in consideration of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, throughout the appeal period, such does not more nearly approximate marked limitation of ankle motion. Therefore, a higher rating under Diagnostic Code 5271 is not warranted. Moreover, as there is no evidence of ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy at any point during the appeal period, higher or separate ratings under Diagnostic Codes 5270, 5272, 5273, and 5274 are not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for left ankle sprain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased rating higher than 10 percent for left ankle instability The Veteran contends that he is entitled to a higher rating for his left ankle instability. As noted in the previous section, he testified at the Board hearing that he continues to have a lot of problems with rolling his ankle. See June 2017 Board hearing transcript, p. 3. He further noted that he occasionally wore a brace for his left ankle. Id. at 5. In addition to the 10 percent rating for limitation of motion of the left ankle, the Veteran also has a separate 10 percent rating based on instability of the ankle (Diagnostic Code 5299-5257). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The use of "99" denotes an unlisted disability (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). 38 C.F.R. §§ 4.20, 4.27. Thus, in this case, the Veteran's service-connected left ankle instability has been rated under Diagnostic Code 5299-5257 as analogous to other impairment of the knee manifested by recurrent subluxation or lateral instability and Diagnostic Code 5257 is the code identifying the basis for the 10 percent rating assigned. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A maximum 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The Board finds that the evidence supports a 20 percent rating, but no higher, for left ankle instability. The Board has carefully considered the Veteran's reports about instability. English, 30 Vet. App. 347, 352-53. Overall, the lay and medical evidence indicates that the instability symptoms more nearly approximate moderate severity. A January 2010 VA examination report shows the Veteran reported having problems with his left ankle since a bad ankle sprain in service. He had decreased range of motion in the left ankle and recurrent swelling and instability. He had never had any surgery, injections, or therapy on the left ankle. He had significant pain at work as a respiratory therapist. The pain slowed him down and affected his productivity because he had difficulty standing and walking for long periods. He also occasionally had to miss work because of his left ankle pain and swelling. He denied activities of daily living being affected and denied flare-ups. He also did not use assistive devices. On physical examination, he had slight instability of the left ankle with drawer testing as well as with inversion and had a large effusion on the lateral aspect of the left ankle. He had 4+ out of 5 strength in the left ankle. He had tenderness to palpation over the lateral malleolus extending down into the anterior talofibular ligament complex. The medial malleolus was nontender. Previous plain films of the left ankle showed a talar exostosis suggestive of previous damage and degenerative disease. The diagnoses were chronic left ankle instability secondary to recurrent sprains and degenerative joint disease of the left ankle. A November 2010 statement was submitted by the Veteran's co-worker, S.G., who indicated that she worked with the Veteran as a respiratory therapist at the hospital. She had observed him over the past four years walking with a limp that became more noticeable. She also had observed him using assistive devices such as crutches and splints so that he could complete his assigned shift. A March 2012 private magnetic imaging resonance (MRI) report shows the Veteran had marked complex peroneal tenosynovitis, extensive lateral ligamentous injury, a talonavicular spur, and edema of the sinus tarsi. As noted, the Veteran also was afforded additional VA examinations in July 2014, September 2016, and December 2017 during the pendency of the appeal. At the July 2014 examination, it is noted that the Veteran's ankle appeared anatomically intact and there was no laxity during the anterior drawer and talar tilt tests. There was no weakening of the ankle strength on weight bearing or non-weight bearing. The September 2016 examination offers similar results to the July 2014 examination. At the December 2017 examination, muscle strength testing was 4/5 for dorsiflexion and 5/5 for plantar flexion, and the joint instability test anterior drawer showed laxity, but the talar tilt test was negative. As previously discussed, the JMPR found that these examinations were deficient in some respect. In addition to not complying with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016); or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the JMPR found that the Board did not adequately define the criteria for determining whether the Veteran's left ankle instability was not more than slight. Specifically, it was mentioned that the Board should consider the Veteran's hearing testimony in June 2017 that he would roll his ankle pretty frequently, and the notations on VA examinations in July 2014 and December 2017 that the Veteran used a cane. On remand, an October 2021 VA examination report shows that specific to instability, the Veteran reported that sometimes the ankle would twist on him randomly. He would wear a brace at work. He also noted that sometimes when walking he would roll his ankle and that the brace helped with instability. On examination, the left ankle was mildly tender to palpation at the lateral malleolus to anterior talofibular ligament. Joint stability testing showed asymmetric or excessive motion on the talar tilt test. The anterior drawer test was negative. It was noted that the Veteran regularly used a brace for his ankle instability. The examiner did not find that instability of station contributed to the Veteran's functional loss. In reviewing the evidence of record, the Veteran indicated that he wore a left ankle brace particularly while working, because his job in a hospital as a respiratory therapist required a lot of walking, and he would notice swelling and occasionally his left ankle would roll randomly. In addition to his subjective complaints, objective evidence includes a March 2012 private MRI report, which shows the Veteran had marked complex peroneal tenosynovitis and extensive lateral ligamentous injury. A December 2017 anterior drawer test also showed laxity; and asymmetric or excessive motion in a talar tilt test was noted in October 2021. In considering the functional impairment caused by the Veteran's instability in the left ankle, the instability more closely approximates the criteria for moderate instability. He originally rolled his ankle in service and since then has had trouble with rolling his ankle. He wore a brace to feel more comfortable at work because his duties require him to walk a lot. Objective testing showed extensive ligamentous injury in March 2012, laxity in anterior drawer testing in December 2017, and asymmetric or excessive motion in a talar tilt test in October 2021. While the October 2021 examiner found that instability of station did not contribute to the Veteran's functional loss, the Veteran's co-worker submitted a statement in November 2010 that she had observed the Veteran walking with a limp for the past four years that had become progressively worse. Thus, to the extent that there is functional impairment due to instability caused by the left ankle in that he wears a brace for stability while prolonged walking at work, his instability more closely approximates the criteria for moderate instability, which warrants a 20 percent rating under Diagnostic Code 5257. The Board also finds that a 20 percent rating would be warranted under the revised provisions for Diagnostic Code 5257. A 20 percent rating is warranted for sprain and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. The Veteran has residuals from a sprain that cause persistent instability. While the medical records do not reflect that he was medically prescribed a brace or assistive device, he testified that a doctor issued him the brace for his ankle but that he subsequently just self-treated. See June 2017 Board hearing transcript, p. 6-7. Thus, resolving all doubt in the Veteran's favor, a 20 percent rating also would be warranted under the revised provisions for Diagnostic Code 5257. A rating higher than 20 percent does not apply for the left ankle disability. The instability is not shown to be of a severe degree under Diagnostic Code 5257. The Veteran has functional impairment in that his ankle occasionally gives out while walking, and he wears a brace for support and has pain and swelling after prolonged walking and standing. Overall, however, his impairment more closely approximates moderate rather than severe impairment. His ankle occasionally and randomly will roll on him, but he does not have constant instability and continues to function at a job that requires extensive walking. Also, under the revised provisions for Diagnostic Code 5257, the medical evidence does not show an unrepaired or failed repair of complete ligament tear; or diagnosed condition involving the patellofemoral complex (or ankle equivalent) with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. In conclusion, the Board finds that the evidence supports a 20 percent rating for left ankle instability, but no higher. To the extent that any further increase in disability is not assigned, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.