Citation Nr: 21006564 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-07 610 DATE: February 4, 2021 ORDER An increased disability rating in excess of 20 percent for right ankle sprain and dislocation, status-post surgery with scar, is denied. FINDING OF FACT The Veteran’s right ankle disability was not manifested by ankylosis. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 20 percent for right ankle sprain and dislocation, status-post surgery with scar, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2000 to August 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision. In a December 2018 decision, the Board denied entitlement to an increased disability rating in excess of 10 percent for right ankle sprain and dislocation, status-post surgery with scar, including on an extraschedular basis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a November 2019 order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), vacated the Board’s decision as to the appealed issue, and remanded the matter for further development and readjudication consistent with the JMPR. In April 2020, the Board remanded the issue for further development, and the case has been returned for appellate consideration. On remand, in a December 2020 rating decision, the evaluation of the Veteran’s right ankle disability was increased to 20 percent disabling, effective August 16, 2009. As this disability rating is less than the maximum benefit available and the Veteran has not indicated satisfaction with the rating assigned, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the veteran’s symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate diagnostic codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, 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. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s right ankle sprain and dislocation, status-post surgery with scar, is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, currently evaluated as 20 percent disabling. Under Diagnostic Code 5271, addressing limitation of motion, a disability rating of 10 percent is warranted for moderate limitation of the ankle, and a rating of 20 percent, the maximum, is warranted for marked limitation of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal ankle dorsiflexion is from zero to 20 degrees, and normal ankle plantar flexion is from zero to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran essentially contends that his right ankle disability is more disabling than contemplated by the currently assigned disability rating. In a May 2017 informal hearing brief, the Veteran’s attorney contended that a disability rating of 20 percent was warranted. The Veteran was afforded VA examinations in November 2014 and May 2016, which, in the JMPR, the parties agreed were inadequate for rating purposes under Sharp v. Shulkin, 29 Vet. App. 26 (2017). During those VA examinations, the Veteran reported experiencing pain, discomfort, discoloration, and swelling of the right ankle with increased activities, which would resolve with several days’ rest. He reported that he wore a lace-up support when participating in sport activities. During the 2016 examination, he reported that he could not stand more than two hours or walk more than one hour before needing to sit down due to pain. In February 2017 statements in support of claim, the Veteran and his wife reported that the Veteran experienced pain around his ankle bone when the weather got cold. It was reported that after walking on construction sites for more than a few hours, the Veteran began to limp, with the pain being 7 to 8/10 some days. It was stated that during flare-ups it felt as if the Veteran was hit in the ankle, with a sharp initial pain followed by throbbing. Docketed May 2017 Correspondence. In December 2020, the Veteran was afforded a VA examination, during which he reported worsening pain, weakness, edema, and limping, as well as significantly increased pain, swelling, and discoloration during flare-ups. He reported flare-ups occurring several times a day, which lasted hours to days. His report of limitations in standing and walking were consistent with that reported in 2016. In terms of daily functioning, his right ankle disability affected standing, walking, lifting, pushing, pulling, and carrying heavy objects. He reported needing frequent position changes, and pain from his disability affected focus and concentration. Initial range of motion testing revealed dorsiflexion to 5 degrees and plantar flexion to 20 degrees, with observed pain in both directions that did not result in functional loss. It was noted that there was moderate localized tenderness on palpation over the screw insertion points. There was objective evidence of pain on weightbearing and of crepitus. Repetitive use testing revealed dorsiflexion to 15 degrees [sic] and plantar flexion to 5 degrees [sic], with pain and weakness causing the functional loss. As to repeated use over time, the examiner indicated that pain and weakness caused functional loss, estimating it would result in dorsiflexion to 5 degrees and plantar flexion to 10 degrees. As to during flare-ups, the examiner estimated that, due to pain and weakness, the Veteran had dorsiflexion to zero degrees and plantar flexion to 5 degrees. The examiner noted there was instability of the right ankle. It was indicated that the Veteran’s surgical scar was neither painful nor unstable. Based upon the foregoing, the Board finds that a disability rating in excess of 20 percent for the Veteran’s right ankle disability is not warranted. The disability has manifested as marked limited motion of the right ankle, which corresponds to a disability rating of 20 percent, the maximum authorized for limited ankle motion. The Board has considered the other diagnostic codes pertaining to the ankle, however, the Veteran has not been found to have ankylosis of the subastragalar or tarsal joint (5272), malunion of os calcis or astragalus (5273), or astragalectomy (5274), and the Veteran does not contend otherwise. 38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274. The Board has considered a separate disability rating for the Veteran’s surgical scar, but as it does not meet the criteria for painfulness, instability, body location, or surface area, and there is no evidence of any other symptom associated with the scar, a separate disability rating is not supported. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. Additionally, the Veteran has not been diagnosed with ankylosis of the ankle. Ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). The Veteran is competent and credible to report his perception of his symptoms. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Specific medical training, however, is required to make a diagnosis such as ankylosis, and accordingly, the Board find the medical findings more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). Although the Veteran’s right ankle may have dorsiflexion to zero degrees during a flare-up, it was estimated that there was plantar flexion to 5 degrees. Furthermore, the examiner found instability of the right ankle. In other words, the preponderance of the evidence is against finding that the Veteran’s right ankle disability manifests as “immobility and consolidation” of the joint or as a condition mimicking same, and therefore, evaluation under Diagnostic Code 5270 for ankylosis is not appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Consequently, the Board finds that the evidence of record establishes that the Veteran’s disability picture due to his right ankle sprain and dislocation, status-post surgery with scar, more closely approximates the criteria for a disability rating of 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In the attorney’s May 2017 brief, it was contended that, if a disability rating of 20 percent was not awarded, then the Veteran’s right ankle disability qualified for extraschedular consideration “because symptoms experienced by him are not fully contemplated by the rating schedule.” It was argued that, because the rating criteria of “moderate” and “marked” limitation of motion was subjective due to lack of definition or guidance, the rating schedule failed to adequately contemplate the symptoms of the Veteran’s right ankle disability. Prior to engaging in an extraschedular analysis, however, the Board must determine whether the Veteran is in receipt of maximum benefit under the schedular alternatives. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019) (“We hold that VA’s duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered.”) For the reasons stated above, the Board has accounted for all the symptoms of the Veteran’s right ankle disability pertaining to limited motion under the schedular alternatives. The Veteran, however, also reported that the pain from his right ankle disability affected his focus and concentration. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see also 82 Fed. Reg. 57830, 57835 (Dec. 8, 2017) (clarifying that extraschedular ratings are based upon a single disability, not the combined effects of multiple disabilities). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence of record does not establish such an exceptional disability picture as to render the schedular criteria inadequate. Nevertheless, because the Veteran has reported symptoms that are not contemplated by the schedular criteria pertaining to ankle disabilities, namely pain affecting focus and concentration, the Board will consider the second prong of Thun. The evidence of record does not establish that the Veteran’s disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. The Veteran has not claimed and there is no evidence of record that he has been hospitalized post-service due to his service-connected right ankle disability. The Veteran has not claimed, and there is no evidence of record to suggest, that any negative effect on focus or concentration has resulted in marked interference with employment. Furthermore, entitlement to an extraschedular rating was not raised further in a January 2020 brief. That being the case, absent any exceptional factors associated with the Veteran’s right ankle disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.