Citation Nr: 21007206 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-00 642A DATE: February 9, 2021 ORDER Entitlement to a rating in excess of 20 percent for residuals of a left ankle injury with arthritis and instability, status post reconstruction surgery, is denied. FINDING OF FACT The Veteran’s residuals of a left ankle injury with arthritis and instability, status post reconstruction surgery, have been assigned a 20 percent rating, which is the maximum schedular rating authorized under the applicable criteria. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for residuals of a left ankle injury with arthritis and instability, status post reconstruction surgery, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to February 1993. This matter comes before the Board on appeal from December 2008 and January 2009 Regional Office (RO) rating decisions. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In a May 2019 decision, the Board granted an effective date of May 17, 2010, for the assignment of a 100 percent rating for generalized anxiety disorder and major depressive disorder. The Board remanded the increased rating claim for the left ankle disability. The appeal has been returned to the Board. The record also reflects that the Veteran is in receipt of special monthly compensation. 1. Entitlement to a rating in excess of 20 percent for residuals of a left ankle injury with arthritis and instability, status post reconstruction surgery, is denied. Disability ratings are determined by comparing a veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. “Staged ratings,” or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). There are VA and private treatment records. The Veteran also underwent VA examinations in December 2008, July 2010, June 2011, January 2012, June 2014, April 2016, and August 2019. In regard to the 2019 VA examination, it was noted that the Veteran does not tolerate excessive, repetitive, or prolonged activity of his ankle; nor does he tolerate prolonged inactivity of his ankle and nor does he tolerate ascending or descending stairs, walking on uneven terrain, heavy lifting, or prolonged standing or walking. On range of motion, the Veteran had dorsiflexion from 0 to 3 degrees and plantar flexion from 0 to 10 degrees. There was evidence of pain with weight bearing. Range of motion after repetitive motion was dorsiflexion from 0 to 4 degrees and plantar flexion from 0 to 4 degrees. The examiner estimated range of motion after repeated use over time was dorsiflexion from 0 to 4 degrees and plantar flexion from 0 to 4 degrees. Muscle strength was 5/5. There was no muscle atrophy. There was no ankylosis. In an attached opinion, the examiner further estimated that the Veteran has left ankle condition flare-ups with a frequency of daily, lasting a duration of about several hours, usually with a severity of decreased range of motion of moderate to severe, with a decreased range of motion during flare-ups of about 6 degrees with left ankle plantar flexion, and 0 degrees with left ankle dorsiflexion. The Veteran is in receipt of a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271. This is the maximum rating that is available for limitation of motion of the ankle. The Board has considered whether a higher rating may be assigned under another diagnostic code. However, in the absence of ankylosis of the ankle (Diagnostic Code 5270), ankylosis of the subastragalar or tarsal joint (Diagnostic Code 5272), malunion of os calcis or astragalus (Diagnostic Code 5273), or astragalectomy (Diagnostic Code 5274), entitlement to a rating in excess of 20 percent for residuals of a left ankle injury with arthritis and instability, status post reconstruction surgery, is not warranted. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.