Citation Nr: 21009104 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 13-24 520 DATE: February 19, 2021 ORDER Effective August 30, 2011, a 20 percent rating is warranted for the service-connected right ankle disability; a rating is excess of 20 percent for the service-connected right ankle disability during any period in appellate status is denied. FINDING OF FACT The evidence of record indicates that throughout the appellate period, the Veteran’s residuals of right ankle fracture has been manifested by marked limitation of motion. CONCLUSION OF LAW The criteria for entitlement to a 20 percent rating, but no higher, for residuals of right ankle fracture prior to February 15, 2017, have been met; entitlement to a higher rating thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to October 1973. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. The hearing transcript is of record. The Board first remanded the claim in January 2017. In October 2018, the Board denied entitlement to a rating in excess of 10 percent, prior to February 15, 2017, and in excess of 20 percent thereafter. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2019, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s decision and remanded the matter to the Board for compliance with the instructions included in the parties’ JMPR. The Board remanded the claim in December 2019 for further development by the RO, as consistent with the JMPR. The Board again remanded the claim in November 2020 for further development by the RO. The case has been returned to the Board for further appellate action. Entitlement to a 20 percent rating, but no higher, for residuals of right ankle fracture prior to February 15, 2017, is granted; entitlement to a higher rating thereafter is denied A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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 Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In determining the adequacy of assigned disability ratings, consideration is also given to factors affecting functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use, including that experienced during flare ups. 38 C.F.R. § 4.40. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 4243 (2011) (holding that pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment). That said, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. The Veteran’s residuals of right ankle fracture are rated under Diagnostic Codes (DCs) 5010-5271. 38 C.F.R. § 4.71a. The Board notes that the current versions of DCs 5010-5271 were amended effective February 7, 2021, the month of this decision. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The current versions of DCs 5010-5271 may not be applied prior to the effective date of February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003). However, the Board finds it may still apply the prior version of DCs 5010-5271 to the entire period on appeal, as the Board is not prohibited from applying a prior regulation in effect during the pendency of a claim to the period on or after the effective date of the new version of the regulation. Thus, the Board finds that it may still apply the prior version of 38 C.F.R. § 4.71a, DCs 5010-5271 to the period on or after February 7, 2021, which is the effective date of the amended criteria, if this would afford a more favorable outcome. As explained below, the highest available rating is being granted pursuant to the old regulations. The former DC 5010 provides that arthritis due to trauma and substantiated by X-ray findings should be rated as degenerative arthritis. Under DC 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is assigned; with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned. The former DC 5271 provides ratings based on limitation of motion of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling. Marked limitation of motion of the ankle is rated as 20 percent disabling. A 20 percent evaluation is the highest warranted for limitation of motion of the ankle. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Words such as “moderate” and “marked” are not defined in the former version of the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Factual background A May 2011 VA treatment record indicates that the Veteran experienced daily, chronic right ankle pain, which was alleviated by naproxen tablets and aggravated by stress to the ankle. The Veteran underwent a VA examination on September 2011. The Veteran reported his condition had worsened since the last VA examination in 2003. He reported constant pain. The pain gets worse at the end of the day if he was on his feet all day. He also reported occasional clicking, catching, locking and swelling. The Veteran also reported flare-ups, during which he must sit down and elevate his ankle. Initial range of motion measurements showed 35 degrees right ankle plantar flexion and 10 degrees right ankle dorsiflexion with no objective evidence of painful motion on either. The measurements remained the same after repetitive use testing. The examiner noted functional loss or impairment, namely, less movement than normal of the right ankle. The examiner noted no weakness, fatigability, incoordination, deformity, atrophy, instability, disturbance of locomotion, or interference with sitting, standing or weight-bearing. The examiner noted no ankylosis of the ankle, subtalar and/or tarsal joint. The examiner noted no shin splints, stress fractures, Achilles tendonitis, Achilles tendon rapture, malunion of calcaneus or talus, a talectomy, total ankle joint replacement, or arthroscopic or other ankle surgery. The examiner noted no other pertinent physical findings, complications, conditions, signs or symptoms. The examiner noted the use of a brace and cane during occasional flare-ups. The examiner noted that imaging studies showed no abnormal findings. This is supported by a separate imaging report noting no dislocation, bony destructive legion, or appreciable arthritic spurring; only an accessory ossicle was noted, and this remained unchanged from the prior exam in July 2003. The examiner also noted that the condition does not impact his ability to work; she noted a mild functional limitation. A November 2011 VA treatment record indicated that the Veteran reported right ankle pain and swelling for the past 3 to 4 weeks; the clinician noted a normal gait. Symptoms were alleviated by rest and aggravated by walking. A December 2011 VA treatment record indicated a slight antalgic gait favoring the right ankle. The ankle appeared benign overall, with possible signs of mild chronic edema. The Veteran’s range of motion measurements were 10 degrees of dorsiflexion and 30 degrees of plantar flexion on active motion; and 10 degrees of both dorsiflexion and plantar flexion on passive motion. The clinician recommended using a cane as well as cortisone injections at 6-month intervals. A March 2012 VA treatment record indicated that the Veteran reported continued pain with activity and some pain with weight bearing, as well as weather-related changes. The examiner noted an antalgic gait favoring his right ankle and no crepitance. An April 2012 private treatment record indicated that the Veteran reported constant, sharp dull pain that worsens with cold weather. The clinician noted significant limited dorsiflexion on manual passive range of motion testing of the right ankle but did not indicate a numerical value. Private treatment records indicate that the Veteran underwent surgery for his right ankle condition in August 2012, namely, the removal of an ossified density. July 2013 VA treatment records indicated that the Veteran continued to take lortab for pain on a daily basis and noted a mildly antalgic gait due to right ankle pain. A November 2013 VA treatment record indicated that the Veteran reported constant right ankle pain; his gait was noted as stable. A January 2014 VA treatment record indicated that the Veteran continued to take lortab for pain daily. A July 2014 VA treatment record noted that his right ankle pain was 7 of 10. A July 2016 VA treatment record indicated that the Veteran displayed a mildly antalgic gait due to right ankle pain. In the August 2016 Board hearing, the Veteran testified that at the time of filing he experienced sharp pains, catching, locking, buckling, and swelling. Following an MRI, he experienced limited rotation, swelling, and significant tenderness. He underwent surgery and took naproxen to keep the inflammation down. The pain remains, though it is not as bad; he described it as coming and going. His motion is restricted, and his clinician regularly notes limited motion. The Veteran underwent a second VA examination in February 2017. The condition was noted as residuals of fracture, right ankle lateral malleolus and distal tibia with mild functional limitation. The examiner noted additional diagnoses of tendonitis and degenerative arthritis. The Veteran reported flare-ups where severe pain prevents walking and causes him to sit and elevate his leg. The Veteran also reported limited motion, inability to crouch, squat, walk, stand or drive for more than 20 to 30 minutes before the pain increases. Initial range of motion measurements showed 20 degrees right ankle plantar flexion and 10 degrees right ankle dorsiflexion. This abnormal range of motion contributed to functional loss by compromising the Veteran’s ability to walk, drive or perform rotating or extending motions. Pain for both dorsiflexion and plantar flexion was noted on examination but did not result in a functional loss. The right ankle was severely tender to palpation. There was evidence of pain with weight-bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The Veteran was not examined after repetitive use over time or during a flare-up, and the examiner was unable to say without mere speculation whether functional ability was limited or to describe it in terms of range of motion. As for additional factors, the examiner noted less movement than normal, swelling, and interference with standing and walking. No atrophy or ankylosis were noted. Instability and dislocation were not suspected. The examiner noted no shin splints, stress fractures, Achilles tendonitis, Achilles tendon rapture, malunion of calcaneus or talus, or talectomy. As for surgical procedures, only the August 2012 procedure was noted. The examiner noted no other pertinent physical findings, complications, conditions, signs or symptoms. The examiner noted occasional use of a brace and cane. The examiner noted functional impact, namely, that the Veteran would have difficulty crouching, squatting, walking, standing, or driving for extended periods of time. The examiner noted that the Veteran provided maximum effort throughout the entire examination, and that he winced frequently but pushed on. An April 2019 VA treatment record noted escalating and disruptive right ankle pain. An August 2019 private treatment record indicates the Veteran reported sharp aching pain as well as tenderness to palpation. This was aggravated with standing and alleviated with NSAIDS and rest. The clinician noted no locking, popping, catching, giving way, numbness or tingling. The recommendation was to continue with his current conservative treatment. In December 2019, the Board remanded for another VA examination compliant with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner was also asked to provide a retrospective opinion for the prior to February 15, 2017, also compliant with these holdings. The examiner was also asked to opine on the presence of malunion or nonunion of the tibia and fibula during the appellate period. The Veteran underwent a third VA examination in December 2019. The examiner noted the right ankle fracture residuals, lateral malleolus and distal tibia, as well as degenerative arthritis, an old partial anterior talofibular ligament tear and joint effusion with high grade chondromalacia, both as of June 2019. The Veteran reported symptoms of tenderness to palpation, swelling when walking, and constant dull pain. The Veteran reported flare-ups, to include when walking or with weather changes. The Veteran reported functional loss, namely, that he cannot walk or stand on his ankle for more than 20 minutes. Initial range of motion measurements showed 25 degrees right ankle plantar flexion and 10 degrees right ankle dorsiflexion. This abnormal range of motion continued to functional loss by affecting the Veteran’s ability to walk, press the gas pedal, and tap his foot. Pain for both dorsiflexion and plantar flexion was noted on examination and did result in a functional loss. There was objective evidence of localized tenderness or pain on palpation. There was evidence of pain on weight bearing and of crepitus. The Veteran able to perform repetitive-use testing with at least three repetitions, which did not result in additional loss of function or range of motion. The Veteran was not being examined immediately after repetitive use over time. Functional ability was limited with repeated use over time by pain, weakness and lack of endurance; the range of motion remained unchanged. The Veteran was not being examined during a flareup. Functional ability was limited with repeated use over time by pain, weakness and lack of endurance; range of motion of motion measurements were 10 degrees of dorsiflexion and 20 degrees of plantar flexion. As for additional factors, the examiner noted less movement than normal, weakened movement, swelling, disturbance of locomotion, and interference with standing. No atrophy or ankylosis were noted. The examiner noted no shin splints, stress fractures, Achilles tendonitis, Achilles tendon rapture, malunion of calcaneus or talus, or talectomy. As for surgical procedures, only the August 2012 procedure was noted. As for other pertinent physical findings, the examiner noted non-pitting edema to the anterior aspect of the left foot and lateral aspect of the ankle. The examiner also noted that a June 2019 MRI indicated tibiotalar small joint effusion and high-grade chondromalacia, particularly involving the medial aspect; small subtalar osteochondral erosion; and an old partial thickness interstitial anterior talofibular ligament tear. The examiner also noted regular use of a brace. The examiner noted functional impact, namely, in activities such as climbing, running, extending toes, sustained periods of standing or walking, or driving in stop-and-go traffic. As for Correia measurements, the examiner noted objective evidence of pain when the right ankle is used in non-weight bearing. The passive range of motion values were the same as the active values. Objective evidence of pain was present on passive range of motion; the values were the same as the active values. The examiner also provided a retrospective opinion pursuant to the Board remand directives. The examiner opined that both active and passive range of motion findings in the September 2011 VA examination are consistent with the December 2019 findings. Given the present swelling, it can be assumed that the 2011 active and passive range of motion values of 35 degrees of plantar flexion and 10 degrees of dorsiflexion with no additional loss after 3 repetitions are correct. The September 2011 examination indicated pain on weight-bearing but not on non-weight bearing given the Veteran’s reports that pain was worse at the end of the day. As the present flare-up duration is 30 minutes, this would have been the approximate duration of the then-flare ups. The left ankle findings were also consistent with present findings. Finally, the examiner opined that the June 2019 MRI does not support a finding of malunion or nonunion of the tibia and fibula of the right ankle. Rather, tibiotalar small joint effusion, high-grade chondromalacia, and old partial thickness interstitial anterior talofibular ligament tear were noted. The examiner further reasoned that malunion and nonunion are diagnosed with imaging. Anterior bony impingement of the ankle is the osteophytic impingement of the anterior rim of the tibia and the sulcus of the talus; it is often related to instability or forceful dorsiflexion of the foot as in the case of the Veteran’s fall and would be apparent on subsequent imaging. A February 2020 VA treatment record notes antalgic gait due to right ankle pain and protracted and disruptive right ankle pain. There are no VA or private treatment records on file for the period after February 7, 2021. In November 2020, the Board remanded again to obtain another retrospective opinion as the prior opinion lacked range of motion values for pain on weight-bearing or non-weightbearing. The December 2020 VA medical opinion states that the examiner cannot provide an estimated value without speculating on the right ankle weight-bearing range of motion due to the absence of a lunge test across the three examinations. Range of motion values for non-weight bearing were 10 degrees of dorsiflexion and between 25 to 30 degrees of plantar flexion. The examiner opined that both passive and active range of motion values were 10 degrees of dorsiflexion, as this remained consistent throughout the appellate period, and 25 degrees of plantar flexion, which is the approximate numerical average of the three values across the VA examinations. The examiner also determined that the Veteran’s reported flare-ups were not true flare-ups as they were consistent with his daily symptoms and did not cause a major disruption in his life or last more than minutes or hours. The examiner further opined that there is no clinical evidence to support malunion or nonunion of the tibia and fibula throughout the appellate period, noting the x-ray and radiology report of April 2012 and August 2012, respectively, and reasoning that malunion and nonunion are diagnosed with imaging.   Analysis In a February 2021 Appellate brief, the Veteran’s representative argued that the examiner’s conclusions regarding a lack of flare-ups should not be used to nullify the Veteran’s reports. The Board agrees and finds that this portion of the examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board does not find that a remand to address these contentions is necessary, as there is no indication that the additional delay to do so would actually avail the Veteran of any benefit, and the current evidence is adequate for adjudication. The evidence of record indicates that the Veteran is entitled to the maximum schedular rating under DC 5271 throughout the entire period on appeal. On review of the record, the Board finds that affording the Veteran the benefit of the doubt, the disability picture presented more accurately reflects a 20 percent disability rating, but no higher, throughout the entire appellate period. Throughout the appellate period, the Veteran has consistently reported pain and limited ability to walk or stand for significant periods of time. Other daily activities, such as driving, crouching or squatting have been impacted. The Veteran has also consistently reported taking medications, to include naproxen, lortab, cortisone injections, and NSAIDs, to alleviate his symptoms. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). The Veteran also reported use of a brace or cane throughout the appellate period. The medical evidence of record shows that the Veteran had, at worse, right ankle dorsiflexion and plantar flexion limited to 10 degrees on passive motion. See December 2011 VA treatment record. Thus, the highest rating under the former DC 5271 is warranted. The Board notes that the results would be less favorable if the new version of the regulation were for application. Under the new DC 5271, the highest 20 percent rating is limited to dorsiflexion of less than 5 degrees or plantar flexion of less than 10 degrees. The evidence of record does not indicate that the Veteran meets such criteria. Following a careful review of the evidence, the Board does not find that a higher disability rating is warranted. Ankylosis has not been shown in the medical evidence nor has it been alleged by the Veteran. Therefore, DCs 5270 and 5272 do not apply. The record does not show malunion or nonunion of the tibia and fibula. The absence of malunion or nonunion were confirmed by the December 2019 and December 2020 medical opinions. The examiners’ opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data, to include citations to the relevant imaging. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, a higher rating under DC 5262 is not for application. The JMPR specifically found that the Board previously did not address this criteria, citing medical evidence that raised the issue of malunion or nonunion. Subsequent VA examination confirmed with adequate reasoning based on medical studies that there is not malunion or nonunion present in this case. These finding were requested by the examination directive contained in the December 2019 Board remand and this question was answered fully in subsequent VA examinations. See answers and rationale contained in December 30, 2019 and December 1, 2020 VA examinations. The Board notes that this regulation was also amended effective February 7, 2021; and results would be the same under the new version of this regulation. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board also notes that there is no higher rating available under DC 5010; and the results would be the same if the new version of the regulation were for application, as the new version directs that post-traumatic arthritis shall be rated as limitation of motion, dislocation or other specified instability under the affected joint. See 85 Fed. Reg. 76453 (Nov. 30, 2020). As such, the Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Thus, a higher rating under another diagnostic code is not warranted. Lastly, because the Veteran’s right ankle has been assigned the maximum rating based on limitation of motion, the DeLuca criteria are not applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); DeLuca, 8 Vet. App. at 206-07; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board acknowledges the Veteran’s competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. In sum, the Board finds that a disability rating of 20 percent, but no higher, throughout the entire appellate period, is warranted for the Veteran’s residuals of right ankle fracture. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal period begins August 30, 2011, the date of claim. There is not evidence of increase within the year prior to this date. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.