Citation Nr: 21077252 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-36 190A DATE: December 29, 2021 ORDER A rating of 20 percent prior to August 24, 2018, for left ankle sprain with osteoarthritis is granted. REMANDED Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT Prior to August 24, 2018, the Veteran's left ankle disability is manifested by pain resulting in marked limitation of motion. CONCLUSION OF LAW The criteria for a rating of 20 percent, but no higher, for a left ankle disability prior to August 24, 2018, are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-5274. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to June 1997. This matter comes 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). In December 2019, the Veteran testified, sitting in San Diego, California, before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. Most recently, in April 2021, the Board remanded the above matters for further development. As the requested development has been substantially completed as to the left ankle claim, this ready for adjudication. The Board finds further development for the TDIU is need so that matter is remanded again. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 1. Entitlement to a rating in excess of 10 percent prior to August 24, 2018, for left ankle sprain with osteoarthritis. The Veteran is rated at 10 percent disabling for a left ankle disability prior to August 24, 2018, under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent rating is warranted where there is moderate limitation of motion of the ankle, and a 20 percent rating is warranted where there is marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. 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 VA's proposed rule titled "Schedule for Rating Disabilities; Musculoskeletal System and Muscle Injuries." 82 Fed. Reg. 35,719 (Aug. 1, 2017). Here, VA proposes to amend DC 5271 to define marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. VA also proposes to define moderate limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. VA states that the change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel. Id. at 35,723. VA issued a final rule that became effective February 7, 2021. VA Final Rule, Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (Nov. 30, 2020). The Board may consider the guidance in the new, final rule as a factor when looking at the totality of the Veteran's left ankle disability picture under old DC 5271. Ankle disabilities can be rated under Diagnostic Codes 5270 (ankylosis of the ankle); 5272 (ankylosis of the subastragalar or tarsal joint); 5273 (malunion of os calcis or astragalus); and 5274 (astragalectomy). 38 C.F.R. § 4.71a, DCs 5270-5274. During a December 2019 Board hearing, the Veteran reported experiencing daily flareups, with high levels of ankle pain during flareups. 12/11/2019, Hearing Transcript. The Veteran underwent a VA examination in December 2016. The examiner noted the Veteran experienced left ankle pain in the range of motion testing which resulted in functional loss. The examiner also noted significantly limited functional ability after repeated use over time but did not state exactly what degree of additional range of motion loss due to the Veteran's very limited ambulation. The December 2016 VA examiner noted that the Veteran has very limited ambulation after repeated use of the left ankle but stopped short of clearly indicating whether the severity would amount to a marked limitation of motion of the ankle. 12/06/2016, C&P Exam. An April 2021 Board decision noted that February 2021 VA examination did not opine as to severity of the Veteran's left ankle disability prior to August 24, 2018, to include an estimated degree of additional range of motion loss after repeated use over time. 02/04/2021, C&P Exam. The Board found the December 2016 and February 2021 VA examinations to be incomplete. The Board remanded the claim and directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion to determine the severity of the left ankle disability prior to August 24, 2018. 04/29/2021, BVA Decision. A June 2021 VA examination noted plantar flexion of 20 degrees and dorsiflexion of 10 degrees in the left ankle, with passive range of motion (ROM) noted as plantar flexion of 30 degrees and dorsiflexion of 15 degrees in the left ankle. There was no additional functional loss after three repetitions. The examiner estimated plantar flexion of 15 degrees and dorsiflexion of 5 degrees in the left ankle during flareups, with functional loss due to pain. The Veteran reported flareups occurring 3-4 times per day, lasting between hours and days in duration, manifesting in excruciating pain. These flareups lead to frequent falls and difficulty standing up without assistance. The June 2021 VA examiner considered the June 2016 VA examination and indicated that the results are similar to the current findings, suggesting that the Veteran's left ankle disability has not changed in severity. The June 2021 VA examiner also incorrectly remarked that June 2016 VA examination described functional loss after repeated use over time in terms of loss of range of motion. 06/11/2021, C&P Exam; 06/11/2021, C&P Exam (medical opinion). After reviewing the competent and probative medical and lay evidence, the Board finds that the competent and probative evidence is at least in equipoise as to whether a rating of 20 percent, but no higher, for a left ankle disability is warranted. The Veteran currently has dorsiflexion of at least 5 degrees and plantar flexion of at least 15 degrees during flare-ups and is currently assigned a 20 percent disability rating for his left ankle disability. In assessing the severity of the Veteran's left ankle disability, of particular note is the frequency and duration of the flare-ups are severe, occurring several times per week and lasting up to days in duration. Moreover, the Board further considers that the Veteran experiences excruciating pain during flare-ups and is unable to even stand up without assistance. The Board places probative weight on the June 2021 VA examiner's opinion insofar as indicating that the Veteran's left ankle disability has not changed in severity since the December 2016 VA examination. Accordingly, given the severity of the flare-ups of the Veteran's left ankle disability, the Board finds that the Veteran's left ankle disability is manifested by pain resulting in marked limitation of motion. A higher rating under DC 5003 is not warranted as the Veteran has not had incapacitating episodes. Additionally, separate and/or higher ratings are not warranted under Diagnostic Codes 5270, 5272, 5273, or 5274 because the weight of the competent and probative evidence is against a finding of ankylosis, malunion of os calcis or astragalus, or astragalectomy. For example, the examination reports, as discussed above, did not reflect ankylosis of the ankle or any other diagnosis. Lastly, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 20 percent rating, the maximum schedular rating for limited ankle motion, already contemplates and compensates the Veteran for any functional loss due to pain in the ankle, to include pain and limited motion. Deluca, 8 Vet. App. at 204-07. In light of the foregoing, the Board finds that a further increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. REMANDED 2. Entitlement to TDIU is remanded. The prior Board remand asked for the Veteran to complete a VA Form 21-8940 and the Veteran was provided one via a May 2021 letter. See 05/12/2021, Subsequent Development Letter. The record does not reflect that the Veteran responded. However, in a December 2021 brief, the Veteran's representative indicated that the Veteran may have not received the May 2021 letter, as the Veteran has been consistent on returning forms and providing requested information when previously asked. 12/03/2021, Appellate Brief. Additionally, the Board notes evidence indicating that the Veteran's service-connected disabilities may impair his ability to maintain employment. See 06/11/2021, C&P Exam (showing frequent flare-ups of the left ankle disability that precludes the Veteran from being able to stand up). As TDIU is being remanded again, the Veteran is to be provided with another opportunity to complete this form with valuable evidence regarding the TDIU matter on appeal. (CONTINUED ON THE NEXT PAGE) This matter is REMANDED for the following action: Send appropriate notice to the Veteran regarding TDIU and complete any necessary development, to include sending the Veteran an application form (VA Form 21-8940). Advise the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of this matter. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.