Citation Nr: 21008815 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-03 919 DATE: February 18, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent for a right ankle disability (previously post-operative right ankle dislocation and fracture residuals) is denied. FINDING OF FACT The Veteran's right ankle disability is manifested by moderate but not marked limitation of motion; and does not result in ankylosis or deformity; or malunion of the os calcis or astralgus with deformity or astragalectomy. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.71a, Diagnostic Code 5010-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from June 1989 to September 1989; November 1990 to May 1991; December 2, 1991 to December 31, 1991; and June 2004 to June 2009, with service in Southwest Asia. The Veteran had additional duty with the Mississippi Army National Guard. This matter was previously remanded in November 2016 in order to reschedule a requested Decision Review Officer (DRO) hearing. The hearing was rescheduled for February 2020 and the Veteran was noted as a no show. The matter was again remanded in May 2020 for further development. The Board notes that the Regional Office (RO) attempted to conduct a personal hearing on September 9, 2020; however, the RO was unable to make telephone contact with the Veteran. An October 2020 letter requested that the Veteran clarify whether he still desired a hearing with a DRO. To date, the Veteran has not responded to the request or provided a written motion showing good cause for the Veteran's failure to report to the DRO hearing. Therefore, the DRO hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e). At the outset, the Board notes that the Veteran was previously awarded service connection with a noncompensable evaluation for his right ankle disability from June 6, 2009 to December 17, 2012. However, a November 2020 rating decision increased the evaluation to 10 percent established from June 6, 2009. Therefore, the issue on appeal is entitlement to an evaluation in excess of 10 percent for a right ankle disability from June 6, 2009 to present. Entitlement to a disability evaluation in excess of 10 percent for a right ankle disability (previously post-operative right ankle dislocation and fracture residuals). Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran seeks entitlement to a rating greater than 10 percent for a right ankle disability. It is noted that the Veteran's right ankle disorder is rated under Diagnostic Code 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that traumatic arthritis under Diagnostic Code 5010 is the service-connected disability and that limited motion of the ankle under Diagnostic Code 5271 is the residual disability. In this regard, Diagnostic Code 5010 provides that traumatic arthritis is rated under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of ankle motion. A 20 percent rating, the maximum rating for this Diagnostic Code, is assigned where there is evidence of marked limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under Diagnostic Code 5270, a minimum 20 percent rating is assigned for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle where plantar flexion is fixed between 30 and 40 degrees, or dorsiflexion is fixed between 0 and 10 degrees. A maximum 40 percent rating is warranted where plantar flexion is fixed at more than 40 degrees, or where dorsiflexion is fixed at more than 10 degrees with abduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the record, service treatment records (STRs) reveal that the Veteran underwent surgery of his right ankle in 2007 due to fracture and dislocation. VA and private treatment records indicate that he has complained of and has been seen for right ankle pain and swelling intermittently since that time. Private treatment records indicate that the Veteran was issued an ankle brace in February 2013 and underwent a right ankle arthroscopic debridement with hardware removal in June 2013. The Veteran was afforded a VA examination in December 2013. The examiner noted right ankle flexion to 35 degrees and dorsiflexion to 10 degrees, also consistent with repetitive use testing, and no objective evidence of painful motion. The examination also noted localized tenderness and slight swelling around the right ankle in soft tissue. The examiner indicated the inability to estimate additional loss of range of motion during a flare up or with repeated use over time without resorting to mere speculation. The Veteran submitted a statement along with his January 2009 Form 9, stating that he experiences constant pain and discomfort in his right ankle along with decreased mobility. Pursuant to the Board's May 2020 remand, the Veteran was afforded another VA examination in September 2020. The examiner reported the diagnosis as right ankle degenerative arthritis and noted its onset as 2020. An additional diagnosis of residuals of dislocation and fracture with an open reduction and internal fixation in 2007 was also noted. He explained that the Veteran’s current traumatic arthritis is a progression of the dislocation and fracture in service. Active range of motion testing revealed dorsiflexion to 5 degrees and plantar flexion to 30 degrees. Passive range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 35 degrees. There was objective evidence of crepitus, pain with weight bearing, and localized tenderness or pain on palpitation. There was no additional loss of range of motion or function after repetitive testing; however, the examiner noted pain, fatigue, weakness, and lack of endurance with repetitive use which he described as dorsiflexion to 5 degrees and plantar flexion to 25 degrees. The Veteran reported flare-ups, but the examination was not conducted during a flare-up and thus, the examiner estimated dorsiflexion to 5 degrees and plantar flexion to 25 degrees. In addition, the examiner noted less movement than normal, disturbance of locomotion, and interference with standing. Muscle strength was rated as a 4 out of 5 for plantar flexion and dorsiflexion. There was no evidence of muscle atrophy or ankylosis. Instability was not found. In light of the evidence as discussed above, the Board finds that the Veteran's right ankle disability, most closely approximates a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271 during the entire period on appeal. Throughout the period on appeal, the most probative evidence fails to show marked limitation of motion of the right ankle, therefore, a rating greater than 10 percent is not warranted. Specifically, the evidence shows that Veteran's right ankle has been manifested by arthritis and moderate limitation of motion at most. Further, the Veteran's right ankle disability was not productive of ankylosis, malunion of the os calcis or astragalus, or an astragalectomy and therefore, the other potentially applicable diagnostic codes include 5272 (ankylosis of the subastralgar or tarsal joint), 5273 (malunion of the os calcis or astralgus), and 5274 (astragalectomy) are not appropriate. As the Veteran has not been shown to have these disabilities at any time during the appeal period, these Diagnostic Codes cannot serve as a basis for an increased rating in this case. The Board acknowledges the Veteran's contentions that his service-connected right ankle disability warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to musculoskeletal disorders, to include a left ankle disability as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected right ankle disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran's service-connected right ankle disability. Therefore, the Board finds that the Veteran’s current 10 percent evaluation adequately compensates him for his symptoms and a rating more than 10 percent for a right ankle disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107(b). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.