Citation Nr: 21008746 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 10-26 318 DATE: February 17, 2021 ORDER Entitlement to a 10 rating for a left ankle sprain is granted effective September 30, 2014. Entitlement to a 20 percent rating for a left ankle sprain is granted effective October 5, 2020. REMANDED In addition, the claim for entitlement to service connection for a right ankle condition, claimed as second to a left ankle sprain, is remanded to the agency of original jurisdiction (AOJ) for additional development. FINDINGS OF FACT 1. Since September 30, 2014, the probative evidence of record demonstrates that the Veteran’s left ankle sprain has a moderate limitation, manifested by instability. 2. Since October 5, 2020, the probative evidence of record demonstrates that the Veteran’s left ankle sprain has a marked limitation of motion. CONCLUSIONS OF LAW 1. Effective September 30, 2014, the criteria for a rating of 10 percent for left ankle sprain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5270 to 5274. 2. Effective October 5, 2020, the criteria for a rating of 20 percent for left ankle sprain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5270 to 5274. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1998 to January 1999, from January 2006 to May 2007, and from May 2010 to January 2012, with additional periods of service in the National Guard. In March 2014, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. In a November 2017 decision, the Board of Veterans’ Appeals (Board), in pertinent part, denied service connection for right ankle disability and an increased rating for left ankle disability. The Veteran appealed that decision. In a May 2019 memorandum decision, the United States Court of Appeals for Veterans Claims (Court), vacated the Board’s decision as to these claims and remanded the matters to the Board. In February 2020, the Board remanded the ankle claims to obtain outstanding medical records and a VA examination. While the Board finds that the agency of AOJ complied with the Remand order, the Board finds that another remand is required for the claim of service connection for a right ankle condition. Increased Rating Claims 1. Entitlement to an increased rating for a left ankle sprain The Veteran contends that she is entitled to a higher rating because the evidence indicates that she has a higher degree of functional loss than limited motion alone. VA’s schedular percentage ratings are based on average impairment of earning capacity as a result of service-connected disability. 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 will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may be awarded if there are decreases or increases in symptomatology the meet the criteria for a different rating for a distinct period during the appeal period. Id. Such an increase is ascertainable during the period on appeal. The Veteran’s left ankle sprain is 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, Diagnostic Code 5271. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. Id. at Plate II. The words “moderate” and “marked” are not defined, and VA must evaluate all evidence to arrive at an equitable and just decision. See 38 C.F.R. §§ 4.2, 4.6. While the terms are not defined by regulation, the Board notes that 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. A separate rating may be assigned for non-overlapping conditions and symptoms, if the compensable criteria under the applicable code(s) are met. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); 38 C.F.R. § 4.14. A minimum 10 percent rating will be assigned for painful motion using an applicable diagnostic code. See Sowers v. McDonald, 27 Vet. App. 472 (2016); 38 C.F.R. § 4.59. A separate or higher rating may be awarded for musculoskeletal conditions based on range of motion if there is additional functional loss after repetitive use or flare-ups due to pain or other factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016); 38 C.F.R. §§ 4.10, 4.40, 4.45. This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant period on appeal; however, the Board has considered the entire record and history to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; see also Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered in providing an estimate of additional functional loss based on range of motion. The most recent VA examiner has given an estimate of additional loss during flare-ups or after repeated use over time. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), will be expanded and flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified by the ratings in particular diagnostic codes are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Evidence The Veteran applied for service connection for her left ankle sprain in July 2007. In September 2007, the Veteran attended a VA examination. She stated that after she sprained her ankle in April 2006, she had pain and recurrent ankle sprains, with the feeling of instability. However, she had nonpainful range of motion that was within normal limits. The Veteran had a second VA examination in October 2009. Her reported symptoms were similar to the prior examination, but overall she reported she was asymptomatic. She did not report any functional loss, flares, or use of an assistive device. Her range of motion was within normal limits. The Veteran’s third VA examination was in October 2016. She described daily pain at a 6 of 10 that was aggravated by standing and walking. She did not report flare-ups but reported that she could no longer run. Upon range of motion testing, her dorsiflexion was limited to 10 degrees and her plantar flexion was limited to 35 degrees. Further, there was pain and tenderness of her left ankle which caused functional loss. There was no additional range of motion lost during repetitive use. As for repeated use, the examiner stated that it would be speculative to render an estimate of range of motion lost. The remainder of the examination was within normal limits, without evidence of instability. The Veteran’s most recent examination came on September 25, 2020. She reported that the symptoms had become progressively worse since the original injury in 2006. She reported current symptoms of easy twisting, pain, and swelling. Flare-ups included increased pain and swelling, with tenderness. As for functional loss, she reported that she could not sit or stand for long periods of time. Upon range of motion testing, her dorsiflexion was limited to 15 degrees and her plantar flexion was limited to 35 degrees. There was pain and tenderness of her left ankle, but it did not cause functional loss. There was no additional range of motion lost during repetitive use or during repeated use (estimated). During flare-ups, the examiner found that dorsiflexion would be limited to 5 degrees and her plantar flexion would be limited to 30 degrees. The remainder of the examination was within normal limits except that a brace was noted for the Veteran’s left ankle. The medical record is largely silent for treatment for the Veteran’s left ankle. Most of the evidence earlier during the period at issue notes that the Veteran’s left ankle resolved. However, on September 30, 2014, a podiatrist noted there was ankle valgus, but did not clarify which side. According to MERRIAM WEBSTER, “valgus” means “of, relating to, or being a deformity in which an anatomical part is turned outward away from the midline of the body to an abnormal degree”. See www.merriam-webster.com/dictionary/valgus. In November 2017, the Veteran reported increased sensation that her ankles were giving out on her. She was given a pair of ankle braces for support. Analysis for the period prior to October 5, 2020 Effective September 30, 2014, the Board finds that the Veteran’s left ankle sprain warrants a 10 percent rating. The Board notes that the only range of motion testing in the file came during VA examinations and the October 2016 examination was the basis for the currently assigned 10 percent rating. The Board has considered the Veteran’s reports of instability and feeling like her ankle is twisting. The Board cannot locate objective indications, including treatment, for such symptomology. However, starting September 30, 2014, there were objective indications of valgus of her ankle. In giving the Veteran the benefit of the doubt, the Board finds that the objective finding of valgus are representative of the twisting/turning sensation the Veteran describes: valgus means “turned outward away from the midline of the body to an abnormal degree.” While the Veteran is competent to report her symptoms, there is no objective medical evidence indicating treatment or problems related to pain, limited motion, instability, weakness, or anything other symptom indicating an objective ankle impairment prior to September 30, 2014. Thus, the Board finds that the Veteran’s left ankle manifested in a functional impairment effective September 30, 2014 and that such an impairment equates to a “moderate” limitation of motion under Diagnostic Code 5271. Thus, effective that date, a 10 percent rating is assigned. Analysis since October 5, 2020 The Board finds that effective October 5, 2020, a maximum 20 percent rating is warranted. Under Diagnostic Code 5271, a 20 percent rating is assigned for “marked” limitation of motion, but as explained above, the regulations do not make clear what a marked limitation of motion is. The Board considered the November 2016 rating decision which granted the 10 percent rating. It found that a moderate limitation of motion was warranted due to “dorsiflexion less than 15 degrees.” However, a marked limitation of motion would not be warranted unless there was “dorsiflexion less than 5 degrees or plantarflexion less than 10 degrees.” While the Board is not bound by this criteria, using it as a reference, the Veteran meets a marked limitation of motion effective October 5, 2020. The examiner stated that during flare-ups, the Veteran’s dorsiflexion would be limited to 5 degrees and her plantar flexion would be limited to 30 degrees. Prior to this, there is no range of motion testing that would equate to such a marked degree. Thus, a higher, 20 percent rating is warranted under Diagnostic Code 5271 effective October 5, 2020, but no earlier. This is the maximum rating for this Diagnostic Code. In granting such a rating, 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. REASONS FOR REMAND 2. Entitlement to service connection for a right ankle condition, claimed as second to a left ankle sprain, is remanded. The Board remanded the Veteran’s claim for service connection for a right ankle condition for a VA examination to provide an opinion on whether the Veteran’s right ankle was directly related to service or secondary to the service-connected left ankle condition. The Board specifically identified in-service medical treatment for the right ankle and other potentially relevant evidence. In October 2020, a VA examiner rendered an opinion finding that the right ankle was neither related to service nor to the left ankle. In doing so, the examiner answered the questions in the negative but did not address the evidence cited by the Board. Specifically, the examiner found that there was no evidence of “complaints or treatment for a right ankle injury” in the service treatment records (STRs); however, the Board had cited to several instances where right ankle pain was indicated during service. Given the inadequate examination, the Board finds an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion for the Veteran’s right ankle disability from a qualified clinician. An in-person examination is not required unless deemed necessary by the clinician. The clinician should opine as to whether the disability at least as likely as not (a 50 percent or greater probability): (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease; or (c) is aggravated by the Veteran’s service-connected left ankle disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the August 1998 STR noting bilateral ankle pain (See VBMS, document labeled STR-Medical, receipt date 9/24/2015, page 42 of 62), the March 2006 STR noting right ankle Ace wrap treatment (See VBMS, document labeled STR-Medical, receipt date 9/24/2015, page 29 of 99), and the October 2016 VA examiner’s notation that the Veteran developed bilateral ankle pain in 2006 (See VBMS, document labeled C&P Exam, receipt date10/25/2016, page 2 of 10). The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Joshua Castillo Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.