Citation Nr: 21077321 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 13-01 115 DATE: December 29, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right ankle strain is denied. Entitlement to a separate 20 percent rating for right ankle instability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right ankle range of motion was, at worst, to 10 degrees dorsiflexion and 30 degrees plantar flexion. 2. The severity, frequency, and duration of the Veteran's right ankle instability and other symptoms most closely approximated moderate disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for a right ankle strain are not 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 5271. 2. The criteria for entitlement to a separate 20 percent rating, no higher, for a right ankle instability are 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 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1978 to December 1998. A November 2015 Board of Veterans' Appeals (Board) decision denied entitlement to an increased rating for a right ankle strain. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2017 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion) vacating the portion of the November 2015 Board decision that denied an increased rating for right ankle strain disability and remanded the appeal for further action in compliance with the Joint Motion. A March 2020 rating decision increased the Veteran's rating for right ankle strain from noncompensable to 10 percent, effective March 31, 2009. As the decision does not constitute a full grant of the benefit sought for the entire appeal period, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In March 2021 and April 2021, VA received a VA Form 10182, Decision Review Request: Board Appeal, requesting to appeal the March 2020 decision for the right ankle. The March 2020 rating decision is a non-initial rating decision that cannot be appealed in the Appeals Modernization Act (AMA). See 38 C.F.R. §§ 3.2400, 19.2. Therefore, the appeal remains in the legacy system. INCREASED RATINGS Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. Where there is a question as to which of the two disability evaluations is applied, the higher evaluation 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. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a rating in excess of 10 percent for right ankle strain is denied. 2. Entitlement to a separate 20 percent rating for right ankle instability is granted. The Veteran is assigned a 10 percent rating for her right ankle under DC 5271. She contends entitlement to a higher initial rating because she experienced intractable pain or refractory pain, which has led to functional loss that has impacted her ability to stand for more than a certain period of time or walk more than a certain amount of time on a regular basis. See November 2021 brief. She contends incapacitating attacks of pain; limited range of motion; functional loss due to weakness, fatigability, incoordination or pain on movement of a joint; limitation of motion due to pain on use, including use during flare-ups. Id. She contends marked interference with her daily activities, to include employment. Id. Under DC 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. Normal ranges of motion for the ankle are 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. The Board notes VA enacted amendments to the musculoskeletal system rating schedule, to include changes to DC 5271, effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board will apply the old rating criteria prior to February 7, 2021 and consider whether the new rating criteria would be more favorable to the Veteran after February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the amended DC 5271 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). The Board granted herein a separate rating for right ankle disability under DC 5262. Under DC 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. VA also amended the rating criteria for DC 5262, effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The rating criteria are split into three categories: medial tibial stress syndrome (MTSS), or shin splints; malunion; and nonunion. As with DC 5271, the Board will apply the old rating criteria prior to February 7, 2021 and consider whether the new rating criteria would be more favorable to the Veteran after February 7, 2021. EVIDENCE At a VA examination in July 2009, the Veteran reported some problems with pain in her right ankle, occurring every three months, can last for a day. She described the aching pain level as 5 out of 10. She reported the pain comes on by itself and goes away with rest. She reported at times having problems with the ankle giving way. She denied functional impairment. On physical examination, range of motion of the right ankle was normal. Range of motion remained unchanged with repetitive use testing. The Veteran denied pain, fatigue, weakness, lack of endurance or incoordination with repetitive use of her ankle. Her gait was normal. No assistive devices were reported. The VA examiner diagnosed right ankle strain with a history of intermittent pain and instability. During this period, various VA and private treatment records generally show complaint of ankle pain. Between 2009 and 2010, the Veteran's private foot and ankle specialist noted her ankle and subtalar joint range of motion was intact bilaterally and symmetrically without crepitus or instability. A February 2010 treatment note states achilles, posterior tibial, extensor, flexor, and peroneal tendon's function was intact bilaterally, both actively and passively. At a September 2010 VA examination, the Veteran reported the right ankle symptoms of weakness, swelling, redness, giving way, and pain. She denied stiffness, heat, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, and dislocation. She reported flare-ups, as often as three times per month, with each flare lasting two days, with pain level as 4 out of 10. During the flare-ups, she reported functional impairment of limping when walking at times. She denied any overall functional impairment caused by her right ankle. On physical examination, the examiner noted tenderness of the right ankle. There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, deformity, or ankylosis. The Veteran's right ankle range of motion was within normal limits. The examiner stated the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner diagnosed chronic right ankle sprain. A February 2015 private treatment note from her foot and ankle specialist indicates after more than five years of absence, the Veteran presented for evaluation, complaining her right ankle was painful. She stated "[s]ometimes I feel like I'm gonna sprain it." However, she denied any specific spraining. She reported pain to the lateral aspect of the foot and ankle. On physical examination, the specialist noted tenderness to the right ankle laterally and pain with sinus tarsitis. There was no sign of stress fracture or vibration pain. A November 2016 private treatment note from her foot and ankle specialist noted sinus tarsi pain and pain improved with insoles in her shoes. She reported when she stood at work, it hurt. The specialist diagnosed other synovitis and tenosynovitis of the right ankle and foot. She was prescribed a hinged ankle brace with an expected length of use of six months. She was instructed to wear the brace when ambulating and remove it when sleeping. A private treatment note from December 2016 reported her right ankle was doing well with the brace; while it was better in certain shoes and boots, overall, there was improvement. A May 2018 private treatment visit reported intermittent pain with ambulation and always wearing her ankle brace, except when sleeping and showering. Overall, she felt much better and was doing exercises (as able) at home. On physical examination, the Veteran had full range of motion of the right ankle; mild swelling around the sinus tarsi; and normal strength in dorsiflexion, plantar flexion, eversion, and inversion. She tested positive for Anterior Drawer and negative for other tests. The physician's assessments were right ankle instability and chronic pain of the right ankle. The Veteran's treatment plan included continued use of her ankle stabilizer orthosis (ASO) as needed. A June 2018 private treatment visit reported the right ankle had been "hurting quite a while." She reported it was stepped on recently and reported limping. The specialist noted the Veteran wore a lace-up type brace and an orthotic. On examination, the specialist found tenderness to the right ankle, mainly to the sinus tarsi on the lateral ankle. There was one specific area of pain to lateral malleolus. There was palpation and vibratory pain. No gross instability was noted. The assessment was other synovitis and tenosynovitis right ankle and foot; other enthesopathy of right foot; other cyst of bone right ankle and foot. The Veteran was placed in a TayCo brace. A July private treatment note instructed the Veteran to decrease her use of the TayCo brace. An October 2018 private treatment visit noted pain to the right sinus tarsi. She stated she wore her brace and the specialist noted she stands at work. The Veteran expressed interest in an injection of lidocaine, which was administered. On physical examination, the specialist noted sinus tarsitis to the right foot with diffuse right foot and ankle pain, primarily to the sinus tarsi. Her treatment plan included the continued use of the brace on her right foot. July and September 2019 private treatment notes indicate the Veteran described her right ankle disability as doing well. Although she stopped wearing the braces, she wanted to wear an older figure-eight brace previously given to her by sports medicine. She denied having any foot or ankle problems orthopedically. At a December 2019 VA examination, the Veteran reported intermittent pain and swelling with increased pain with use/weight bearing. She treated her ankle disability with prescribed diclofenac gel and Naprosyn. She denied flare-ups. She reported right ankle functional loss of impairment of limited weight bearing for prolonged times and limited climbing. Range of motion for the right ankle was normal. Pain was noted on examination; however, it did not cause or result in functional loss. There was no additional functional loss after 3 repetitions. There was pain with weight bearing, but no evidence of crepitus. There was no objective evidence of pain on non-weight bearing or passive range of motion. The examiner found objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, noting the whole ankle as moderate and part of a chronic sprain. The examiner stated the Veteran was not examined immediately after repetitive use over time. The examiner opined that pain, fatigue, weakness, lack of endurance, and incoordination would significantly limit the Veteran's right ankle functional ability with repeated use over a period of time, described in terms of range of motion loss as limited to 10 degrees dorsiflexion and 30 degrees plantar flexion. The examiner stated the Veteran was not examined during a flare-up. The examiner opined that pain, weakness, fatigability or incoordination would not significantly limit functional ability with flare ups. The examiner noted the additional factors which contributed to right ankle disability were swelling, disturbance of locomotion, and interference with standing. Muscle strength testing was normal. The examiner noted ankle instability or dislocation was suspected, noting a positive Anterior Drawer Test and Talar Tilt Test, when compared to the left ankle. The examiner denied shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy). The Veteran did not report the use of any assistive device. The examiner opined the Veteran's right ankle disability impacted her ability to stand and walk, limited to less than two hours a day, and avoid climbing and uneven terrain. At a January 2020 private treatment visit at the family medicine center, she complained of pain all over her body, including her ankle. She shared her ankle pain started a week prior, after she started walking more at her new job. It was noted that her pain "occurs after she works." A May 2021 private treatment visit with her private foot and ankle specialist reported pain to both feet. It was noted she was last seen in September 2020. She reported having a night splint that she did not wear due to claustrophobia. She reported having custom orthotics, which were not comfortable and not helping. She reported wearing insoles at times. At a September 2021 VA examination, she reported the right ankle symptoms of dull ache with intermittent, sharp-stabbing pain, occasional swelling, loss of range of motion, and popping noises. She denied flare-ups. She described functional loss of difficulty walking or climbing stairs. She reported instability of the right ankle, described as "sometimes rolls her ankle and falls." Range of motion testing for the right ankle showed normal dorsiflexion with plantar flexion limited to 30 degrees. She endorsed pain in both dorsiflexion and plantar flexion. The Veteran's functional loss due pain was described as a difficulty with ambulation. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue described as severe. The Veteran was able to perform repetitive use testing without additional functional loss. The examiner stated the Veteran was not being examined immediately after repeated use over time or during a flare up. The examiner opined pain, fatigability, weakness, lack of endurance, or incoordination would not significantly limit functional ability with repeated use over time or during a flare up. The examiner noted additional contributing factors of disturbance of locomotion, described as difficulty ambulating for long periods of time due to pain. On joint stability testing, the examiner found no absence of firm end point with asymmetric or excessive motion or asymmetric or excessive motion. The Veteran reported constant use of a cane for her right ankle disability. The examiner opined the impact of her ankle on her ability to perform occupational tasks was difficulty standing or ambulating for even short periods of time due to pain and she cannot traverse stairs. ANALYSIS Entitlement to an initial rating in excess of 10 percent for right ankle strain The Veteran is assigned a 10 percent rating for right ankle strain under DC 5271. The preponderance of the evidence is against a rating in excess of 10 percent under DC 5271. To warrant a rating in excess of 10 percent under DC 5271, the evidence must show marked limited motion of the ankle. The evidence shows right ankle range of motion, at worst, to 10 degrees dorsiflexion and 30 degrees plantar flexion. The Board gives probative weight to December 2019 and September 2021 VA examination findings because the examiner considered additional range of motion loss with pain, fatigability, weakness, lack of endurance, or incoordination after repeated use over time and during a flare-up. The Board considered whether a higher rating would be warranted under the amended rating criteria. As noted above, the probative evidence is against finding dorsiflexion limited to less than 5 degrees or plantar flexion limited to less than 10 degrees. Therefore, a rating in excess of 10 percent for right ankle strain under DC 5271 is not warranted. Entitlement to a separate 20 percent rating for right ankle instability The Board finds a separate 20 percent rating for right ankle instability under DC 5262 is warranted. DC 5262 provides a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability, a 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability, a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability, and a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Although there is no evidence of malunion or nonunion of the tibia or fibula, the evidence shows right ankle instability and other symptoms manifested throughout the appeal period that are not contemplated under DC 5271. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board finds a separate rating by analogy under DC 5262 is appropriate to rate the Veteran's disability picture. The Board finds the severity, frequency, and duration of the Veteran's right ankle instability and other symptoms most closely approximated moderate disability. Notably, a July 2009 VA examination reported right ankle giving way on occasion. The examiner noted gait was normal and no assistive devices were reported. The examiner diagnosed right ankle strain with a history of intermittent pain and instability. A September 2010 VA examination reported right ankle symptoms of weakness, swelling, redness, giving way, and pain. The Veteran reported limping when walking during flare-ups. A November 2016 treatment note prescribed a hinged ankle brace. Though, she was initially expected to use it for only six months, treatment records show she was prescribed and used different types of ankle braces throughout the appeal period. A May 2018 private treatment visit reported intermittent pain with ambulation and always wearing her ankle brace, except when sleeping and showering. The clinician assessed right ankle instability and prescribed continued use of her ankle stabilizer. The December 2019 VA examination reported intermittent pain and swelling. The examiner opined the Veteran's right ankle disability limited her ability to stand and walk to less than two hours a day and avoid climbing and uneven terrain. A September 2021 VA examination reported right ankle symptoms of dull ache with intermittent, sharp-stabbing pain, occasional swelling, loss of range of motion, and popping noises. She described functional loss of difficulty walking or climbing stairs. She reported instability of the right ankle, described as "sometimes rolls her ankle and falls." She reported constant use of a cane for her right ankle disability. The examiner opined the impact on her ability to perform occupational tasks was difficulty standing or ambulating for even short periods of time and cannot traverse stairs. The preponderance of the evidence is against finding marked right ankle disability. The evidence shows limitation of prolonged standing and walking, use of a variety of right ankle braces throughout the appeal period, and difficulty with climbing, uneven terrain, and stairs. The Veteran started using a cane. However, the Veteran was not prevented from some standing and walking. The evidence does not show regular use of a walker or wheelchair due to right ankle disability. The evidence shows the Veteran performed work that required standing and walking for a majority of the appeal period. The evidence shows the Veteran was able to independently perform activities of daily living. A May 2021 private treatment visit noted the Veteran walks around the house and goes out some. The Board finds the Veteran's reported right ankle symptoms and resulting functional impairment most closely approximate moderate disability. The Board considered whether a higher rating was warranted under the amended criteria. The evidence does not show MTSS or shin splints; malunion; or nonunion. The amended rating criteria for DC 5262 provide malunion is to be evaluated under DC 5270 (ankylosis of the ankle) or 5271 (limitation of motion of the ankle), whichever results in the highest evaluation. As such, a higher rating is not warranted under the amended rating criteria. Lastly, the Veteran's representative generally raised the issue of referral for extraschedular consideration. The representative provided no further explanation or argument as to why referral for extraschedular consideration was warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008). The Board finds the Veteran's symptoms and resulting functional loss are fully contemplated within the schedular criteria. Specifically, under DC 5262, the terms mild, moderate, and marked in the rating criteria are broad enough to encompass all of the Veteran's symptoms and resulting functional impairment. In conclusion, a rating in excess of 10 percent for right ankle strain is denied. A separate 20 percent rating for right ankle instability is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASON FOR REMAND Entitlement to a TDIU is remanded. The Veteran raised the issue of entitlement to TDIU due to service-connected right ankle strain. See November 2021 brief. The record indicates the Veteran started a new job on or around January 2020 and retired in March 2020. The Board finds evidence sufficient to reasonably raise the issue of entitlement to TDIU as part of the Veteran's claim for increased disability rating. Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). On remand, the Veteran should be given the opportunity to complete a TDIU application and provide evidence of unemployability. The matter is REMANDED for the following action: Provide appropriate notice to the Veteran concerning how to substantiate a claim for TDIU and an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). TESS WINKLER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.