Citation Nr: 21009205 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 16-55 301 DATE: February 19, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for right ankle sprain is denied. FINDING OF FACT The Veteran’s right ankle sprain manifests in moderate, but not marked, limitation of motion. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for right ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 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 September 2001 to April 2002 and April 2011 to February 2012. She also had a period of active duty for training (ACDUTRA) from September 1982 to March 1983. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 and July 2019, the Board remanded the Veteran’s appeal to the RO for further evidentiary development. Entitlement to an initial disability rating in excess of 10 percent for right ankle sprain The Veteran contends that her right ankle condition warrants an initial rating in excess of 10 percent. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. The Veteran’s right ankle sprain has been rated under the criteria of Diagnostic Code 5271, for limited motion of the ankle. These criteria provide that in cases of moderately limited motion, a rating of 10 percent is warranted. In cases of marked limitation of motion of the ankle, a rating of 20 percent is to be assigned. 38 C.F.R. § 4.71a. The terms “moderate” and “marked” as used under DC 5271 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is “moderate” or “marked,” the Board must evaluate all the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. To that extent, the Board notes that the normal ROM for the ankle is as follows: dorsiflexion to 20 degrees and plantar flexion to 45 degrees. The VA Adjudication Procedures Manual, M21, shows examples of moderate and marked limitation of motion (LOM) of the ankle under DC 5271. An example of moderate limitation of ankle motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. An example of marked LOM is less than five degrees dorsiflexion or less than 10 degrees plantar flexion. M21 III.iv.4.A.6.m. Turning to the evidence, in October 2001, during a period of active duty, the Veteran was given a Light Duty Chit and was to perform no physical exercise and no duty involving prolonged standing or walking, and was given crutches. Viewing of the right ankle showed no fracture or dislocation. During active duty service in February 2012, the Veteran reported continued pain despite physical therapy and continued to use a cast boot for the ankle at times, as well as an ASO brace. She reported continued lateral ankle pain and a sharp electric-like pain shooting up the lateral side of her foot, and pain when pushing the foot pedals to drive a vehicle. A February 2012 MRI showed injury to the anterior talofibular ligament with a few interior fibers still intact, and the calcaneofibular ligament also torn, but the posterior talofibular ligament and anterior and posterior tibiofibular ligaments intact, and the vertical and horizontal portions of the spring ligament within normal limits. The physician found a tear of the anterior talofibular and calcaneofibular ligament secondary to sequela of subacute injury, possible stress changes of the calcaneus, correlating with the Veteran’s history of increased activity. A March 2012 VA treatment record indicated that the Veteran’s right ankle pain and ankle strength were improving. The Veteran was afforded a VA examination for ankle conditions in May 2015. She reported ankle pain, stiffness, a decreased range of motion, swelling and pain resulting in limitations in walking and standing. She also reported flare ups. The examiner found the right ankle’s dorsiflexion was limited to 10 degrees and plantar flexion limited to 40 degrees. There was pain on examination but not resulting in functional loss. The Veteran showed pain in weight bearing and tenderness to palpation at the anterior talo-fibular ligament. There was no worsening of functional loss after three repetition and the Veteran was not examined immediately after repeated use over time. The pain and lack of endurance resulted in functional limitation with repeated use over time and during flare ups. The Veteran walked with a slight limp. She had normal strength in plantar flexion and dorsiflexion and there was no muscle atrophy. After completing an anterior drawer test, the examiner found laxity in the right ankle, compared to the opposite side. The examiner stated that the instability was mild. The Veteran used a right ankle brace regularly. The examiner opined that the Veteran should work a “sedentary” job and avoid walking on irregular surfaces. June 2018 and August 2018 VA treatment records indicate that the right ankle had improved. The Veteran underwent a second VA examination for ankle conditions in May 2019. The examiner diagnosed a right ankle sprain. The Veteran reported flare ups of severe right ankle pain. She said that she had difficulty with prolonged walking. The range of motion was limited to dorsiflexion of 15 degrees and plantar flexion of 35 degrees. The examiner stated that this limitation contributed to functional loss in difficulty walking. There was evidence of pain on weight-bearing and dorsal pain on palpation, but there was no crepitus. There was no increase in limitation after three repetitions, but with repeated use over time the range of dorsiflexion was limited to 10 degrees and plantar flexion was limited to 30 degrees. During flare-ups, dorsiflexion is limited to 10 and plantar flexion is limited to 30 degrees. Strength was normal on dorsiflexion and plantar flexion and there was no muscle atrophy, ankylosis, or instability. The examiner found no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran reported using a right ankle brace regularly, and said that her flare ups are severe. The Veteran showed pain on passive ROM testing and also when not weight-bearing. The Board finds that the above evidence reflects moderate rather than marked limitation of motion. The Board notes that the above evidence reflects dorsiflexion limited to no less than ten degrees and plantar flexion to no less than thirty degrees, even when taking into account functional loss due to pain, weakness, fatigability, incoordination, or pain on movement. It also takes into consideration impairment on flare-ups and with repetitive use. These numbers are half and two thirds of the normal range of motion (20 degrees dorsiflexion and 45 degrees plantar flexion), respectively. Considering the Veteran’s symptoms as required by 38 C.F.R. § 4.40 and 4.45, the Board notes that the symptoms of pain and stiffness and reduced range of motion are already contemplated by the rating criteria of Diagnostic Code 5271. 38 C.F.R. § 4.71a, DC 5271. Although the May 2015 examiner found mild instability in the anterior drawer test but not the talar tilt test, the May 2019 examination found no instability and the Veteran has not reported instability. The Board finds that any mild instability does not more nearly approximate a marked limitation of motion, which would call for a rating of 20 percent. Id. The Board notes that the other diagnostic codes for ankle conditions (DCs 5270, 5272, 5273, and 5274) do not have applicability in this matter, as there is no evidence that the right ankle, subastragalar joint, or tarsal joint are ankylosed, that there is malunion of the os calcis or astragalus, or that the Veteran underwent astragalectomy (i.e., the pathology addressed by those Codes). 38 C.F.R. § 4.71a. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the evidence 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. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.