Citation Nr: 21005719 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-20 132A DATE: February 2, 2021 ORDER Entitlement to an initial disability rating higher than 10 percent for left ankle tendonitis is denied. Entitlement to an initial disability rating higher than 10 percent for status post fracture of the right ankle with tendonitis is denied. FINDINGS OF FACT 1. The Veteran’s left ankle tendonitis is manifested by no more than moderate limited motion of the ankle. At no point during the period at issue has he had ankylosis of the ankle. 2. The Veteran’s status post fracture of the right ankle with tendonitis is manifested by no more than moderate limited motion of the ankle. At no point during the period at issue has he had ankylosis of the ankle.   CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left ankle tendonitis 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 a rating in excess of 10 percent for status post fracture of the right ankle with tendonitis 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 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army, including from April 1994 to February 1997, and in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of a United States Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In July 2018, the Veteran testified before the undersigned Veterans Law Judge and a transcript of the Board hearing is of record. Increased Rating Entitlement to disability rating higher than 10 percent for left ankle tendonitis and status post fracture of the right ankle with tendonitis is denied. In January 2013, the Veteran argues that she was entitled to a higher initial rating than she was awarded in her January 2012 rating decision. Alternatively, at her July 2018 Board hearing, she argues that her ankle conditions had worsened since her prior September 2011 VA examination.   The Veteran’s left ankle tendonitis and status post fracture of the right ankle with tendonitis are 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. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. 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. Normal range of motion in the ankle is 45 degrees plantar flexion and 20 degrees dorsiflexion. See 38 C.F.R. § 4.71a. The words “moderate” and “marked” are not defined in the Rating Schedule. Furthermore, the use of terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at an appropriate rating that would compensate a veteran for losses such as impairment in earning capacity and function. 38 C.F.R. §§ 4.2, 4.6. 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). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left ankle tendonitis and status post fracture of the right ankle with tendonitis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, including pain during flare-ups. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that Veteran has 10 out of 10 pain once or twice a month when the farthest she can walk to her bathroom and back and limited motion or “lock up” that can last up to a week and occurring every couple of month would not result in symptoms more nearly approximating marked limited motion. The objective medical evidence of record is consistent with the Veteran’s July 2018 testimony that her ankle disabilities have worsened since her September 2011 VA examination, but unfortunately, a review of the Veteran’s medical evidence of record since September 2010 shows that a preponderance of the evidence is inconsistent with a rating higher than 10 percent at this time. At her September 2011 VA examination (in a report dated October 2011), the Veteran reported weakness, stiffness, heat, giving way, lack of endurance, locking, fatigability, and pain. She reported flareups of 8 out of 10 pain precipitated spontaneously by physical activity and alleviated by medication and heat. She reported limited motion during flareups and difficulty with standing or walking. She indicated pain limits her getting around, decreased range of motion, and difficulty with prolonged standing and walking. Physical examination showed right and left ankle tenderness, but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment and drainage. There was no subluxation. The VA examiner found that her right and left ankle joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Right ankle dorsiflexion was limited to 20 degrees out of a normal 20 degrees and plantar flexion was limited to 35 degrees out of a normal 45 degrees. Left ankle dorsiflexion was limited to 20 out of 20 degrees and plantar flexion was limited to 45 out of 45 degrees. The right and left ankle x-ray results were within “normal” limits. There was no indication of a malunion to the os calcis or the astragalus. The VA examiner diagnosed status post right ankle fracture with tendonitis and left ankle tendonitis. The VA examination report reflected consideration of the Veteran’s medical record and cited to pertinent treatment notes. At her November 2019 VA examination, the Veteran reported that her right ankle aches and occasionally swells up. She reported that her right ankle aches every other day and swells depending on level of activity. She reports that she uses various topical agents and orally takes Ibuprofen and Tylenol. She denies any medical care for right ankle over the years. She related difficulty with getting a VA appointment for ankles in the past. She described her ankle pain as being throughout the joint. She denied any X-ray of her right ankle in the past five years at least. She stated that, like her right ankle, her left ankle hurt more often and for longer periods now than it did ten years ago. Initial right ankle dorsiflexion was limited to 10 degrees out of a normal 20 degrees and plantar flexion was limited to 25 degrees out of a normal 45 degrees. Physical examination showed “mild” tenderness and physical signs “consistent with diagnosis of tendonitis.” Initial left ankle dorsiflexion was limited to 15 out of 20 degrees and plantar flexion was limited to 35 out of 45 degrees. Physical examination showed “very mild” tenderness and physical signs “showing evidence of abnormality associated with diagnosis of tendonitis.” There was pain but no additional loss of function or range of motion after three repetitions and the VA examiner found that there would be none with repeated use over time. The VA examiner opined that during flareups, right ankle dorsiflexion would be limited to 10 degrees out of a normal 20 degrees and plantar flexion 20 degrees out of a normal 45 degrees due to pain. During flareups, left ankle dorsiflexion would be limited to 15 degrees out of a normal 20 degrees and plantar flexion was limited to 30 degrees out of a normal 45 degrees due to pain. Muscle strength was “5/5.” There was no ankylosis, joint instability, or other pertinent physical findings, complications, conditions, signs or symptoms. X-ray imaging showed “no evidence of acute fracture...normal alignment.” The VA examination report reflected consideration of the Veteran’s medical record. Comparing the Veteran’s September 2011 and November 2019 VA examination, there was a measurable increase in the severity of the Veteran’s ankle disabilities, but the Veteran retained at least 50 percent of a normal range of motion of both ankles. In September 2011, the Veteran had normal dorsiflexion in both ankles, normal plantar flexion in her left ankle, and retained greater than 75 percent of a normal plantar flexion range of motion in her left ankle. In November 2019, even during a flareup, the Veteran had at least 50 percent of normal dorsiflexion in left ankle, 75 percent of normal dorsiflexion in the right ankle, 50 percent of normal plantar flexion in the left ankle, and 75 percent of normal plantar flexion in the right ankle. The Boards finds these limitations are moderate, not marked. This is true even when pain on use or during flares is taken into account. This objective evidence is in stark contrast to the Veteran’s subjective complaints at the July 2018 Board hearing, at least regarding ankle limitations. The Veteran testified that the Veteran did not drive because of swelling. The Veteran testified that pain averaged a “5” but could reach a “10” out of 10 and would soak her ankles in Epsom salt and stay off them during a flareup. The Veteran testified to limited range of motion during flareups that occurred every couple of months and could last about a week. The Veteran has alleged marked symptoms, but the medical evidence of record showed no more than moderate signs or medical findings (see above). The November 2019 VA examiner opined that during flareups, “the Veteran may have limited ability to perform job tasks involving working at heights (for example, on ladders or on elevated, unprotected structures) due to potential compromise of balance and safety concerns.” This is not as limited as the Veteran’s testimony. If the problems were as bad as alleged, the Board would expect the medical evidence of record to reflect that the Veteran would have sought treatment for the disorders. Outside of the two VA examinations, however, there were no other record of ongoing ankle treatment during the period at issue. Finally, the Veteran’s alleged limitations may not be entirely due to her ankles. The Veteran testified, “I haven't worked since I got out because of the other issues.” It is not clear from the record what role “other issues” may play into the limited activities of daily living, but it is clear that the medical evidence of record at this time does not support that the Veteran’s ankles are markedly limited within the meaning of 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The evidence of record, including her July 2011 and November 2019 VA examination reports, does not establish ankylosis of the Veteran’s ankles, ankylosis of her subastragalar or tarsal joints, malunion of her os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a. 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 either left ankle tendonitis or status post fracture of the right ankle with tendonitis. In denying such ratings, 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. The claims are denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.