Citation Nr: 21009635 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-36 372A DATE: February 23, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left ankle disability, prior to September 25, 2020, is denied. Entitlement to an increased rating of 20 percent, but not higher, for a left ankle disability as of September 25, 2020, but not earlier, is granted. FINDINGS OF FACT 1. Prior to September 25, 2020, a left ankle disability was not manifested by marked limitation of motion. 2. As of September 25, 2020, but not earlier, a left ankle disability was manifested by pain, fatigue, and weakness, with marked limitation of motion. CONCLUSIONS OF LAW 1. Prior to September 25, 2020, the criteria for an increased rating for a left ankle disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.40, 4.45, 4.7, 4.71a, Diagnostic Codes 5262-5271. 2. As of September 25, 2020, but not earlier, the criteria for an increased rating of 20 percent for a left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.40, 4.45, 4.7, 4.71a, Diagnostic Codes 5262-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to October 1974. These matters come to the Board of Veteran's Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans' Affairs (VA) Regional Office in Houston, Texas. In January 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In February 2020 the Board remanded this claim for further development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). When rating musculoskeletal disabilities based on limitation of motion, the Board must consider functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. The Board must also consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 are relevant when rating a disability, the rating is assigned based on the extent to which motion is limited. A separate or higher rating under 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 is not appropriate. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an increased rating of 20 percent, but not higher, for a left ankle disability as of September 25, 2020, but not earlier The Veteran filed a claim in December 2007 seeking a higher rating for residuals of a service-connected left fibula fracture. A March 2008 rating decision assigned an increased 10 percent rating, effective December 7, 2007. The Veteran claims that the left ankle disability warrants a higher disability rating. The Veteran's left ankle disability is currently rated 10 percent, under Diagnostic Code 5262 (impairment of tibia and fibula) rated by analogy to Diagnostic Code 5271 (limitation of motion of ankle). Under Diagnostic Code 5262, used for rating medial tibial stress syndrome (MTSS), or shin splints, a 10 percent rating is warranted for requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted for medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating is warranted for medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Malunion of the tibia and fibula are to be rated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest rating. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under the criteria of Diagnostic Code 5271, a 10 percent rating is assigned for moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) limitation of motion. Under Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of ankle motion is from 20 degrees of dorsiflexion to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. On February 2008 VA examination, the Veteran reported sharp pain in the left leg made worse by walking, sitting and climbing stairs. Range of motion testing showed dorsiflexion limited to 15 degrees and plantar flexion limited to 34 degrees. The examiner stated that left ankle motion was limited by pain and following repetitive use, but did not report the degree of loss. The examiner found no indication of malunion on the left. On May 2014 VA examination, the examiner found no ankle instability and no indication of nonunion of the tibia and fibula. On May 2016 VA ankle examination, the examiner found osteoarthritis of the left ankle. The left ankle had a full range of motion. The Veteran was able to perform repetitive use testing with no loss of motion. Functional ability was not limited by pain, weakness, fatigability or incoordination. The examiner noted no evidence of nonunion of the tibia and fibula; no malunion with marked or moderate knee or ankle disability; and no loose motion requiring a brace. The examiner found that left ankle osteoarthritis had no functional impact on the Veteran’s ability to perform occupational tasks. On September 2020 VA ankle examination, the Veteran reported left ankle pain and twice weekly, moderate flare ups. Functional loss due to pain, fatigue, and weakness limited dorsiflexion to 10 degrees and plantar flexion to 5 degrees. The examiner noted that there was no crepitus, no ankylosis, no instability or dislocation, and no use of assistive devices. The examiner also noted that there was no nonunion of the tibia and fibula with loose motion requiring a brace and no malunion of the tibia and fibula with marked knee or ankle disability. The functional impact of the ankle disability was noted as the inability to walk or stand for prolonged periods of time. The Veteran and spouse submitted lay statements reporting that that the Veteran’s left leg disability worsened over time with increased pain. Prior to September 25, 2020, the Board finds that the evidence did not show marked limitation of motion, with less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The evidence did not show nonunion of malunion. The evidence did not show treatment of shin splints. Therefore, the claim for increased rating prior to September 25, 2020, must be denied. On review of all the evidence of record, both lay and medical, the Board finds that the Veteran's left ankle disability has more nearly approximated a the criteria for a 20 percent rating, but not higher, as of September 25, 2020. The range of motion findings on September 2020 VA examination show that plantar flexion of the left ankle is limited to less than 10 degrees when pain, fatigue, and weakness are considered. Thus, the Board finds that the functional impact of the left ankle disability most closely approximates marked limitation of motion under Diagnostic Code 5271, warranting a 20 percent rating. A 20 percent rating is the maximum rating available under Diagnostic Code 5271. In addition, there is no evidence of nonunion or malunion of the tibia or fibula with impairment in the knee or ankle or of medial tibial stress syndrome (MTSS) or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities (Diagnostic Code 5262); ankylosis of the left ankle (Diagnostic Code 5270); ankylosis of the subastralgar or tarsal joint (Diagnostic Code 5272); malunion of the os calcis or astragalus (Diagnostic Code 5273); or astragalectomy (Diagnostic Code 5274). Thus, a higher or separate rating under any of the applicable diagnostic codes rating codes is not warranted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for a left ankle disability prior to September 25, 2020. Resolving reasonable doubt in the Veteran's favor, the Board finds that as of September 25, 2020, but not earlier, the left ankle disability more closely approximates the criteria for a 20 percent rating under Diagnostic Code 5271. The Board finds that the preponderance of the evidence is against the claim for any higher rating. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals 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.