Citation Nr: 21010049 Decision Date: 02/24/21 Archive Date: 02/23/21 DOCKET NO. 13-24 956 DATE: February 24, 2021 ORDER Entitlement to an increased rating of 20 percent for service-connected left ankle for the entire appeal period is granted. FINDING OF FACT Resolving doubt in the Veteran’s favor, his left ankle disability has been manifested by marked limitation of motion. CONCLUSION OF LAW The criteria for an increased rating of 20 percent for the Veteran’s left ankle disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71(a), Diagnostic Code (DC) 5020-5271 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably with the United States Army from January 1985 to August 1985. This matter was previously adjudicated by the Board of Veterans’ Appeals (Board) in a June 2017 decision. In that decision, the Board denied the Veteran’s claim for an increased rating for his left ankle disability. The Board reasoned that the Veteran’s disability had not reached a severity that would require an increased rating. See June 2017 Board Decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC) the Board’s June 2017 decision that denied his claim. In June 2018, CAVC granted a Joint Motion for Remand (JMR) and vacated and remanded the June 2017 decision of the Board which denied the Veteran’s claim for an increased rating for his left ankle disability. The JMR found that the June 2017 decision erred by failing to provide adequate reasons and bases for its denial. The Court found the Board failed to address 38 C.F.R. § 4.59 and reconcile it with evidence of the left ankle pain and malalignment. Additionally, the Court found the Board erred by providing inadequate examinations with regard to the Veteran’s claims for an initial disability rating for a left ankle disability prior to January 25, 2016, and for an increased rating in excess of 10 percent thereafter. See June 2018 CAVC Decision. In October 2018, the Board remanded this matter for further development. The Board instructed the RO to request any outstanding VA treatment records and schedule a new examination that was both Correia and Sharp compliant for the Veteran’s left ankle disability. The Veteran’s claim was returned to the Board after the additional development was completed. In August 2020, the Board remanded this matter again for further development. The Board instructed the RO to obtain a Correia compliant addendum opinion from the August 2019 examiner. See October 2018 Board Decision; see also August 2020 Board Decision. Entitlement to an increased rating of 20 percent for service-connected left ankle is granted. In the instant case, the Veteran was initially granted service connection in a March 2012 Rating Decision pursuant to Diagnostic Code (DC) 5020-5271. with an evaluation of 0 percent. See March 2012 Rating Decision. The Veteran’s initial rating was increased from 0 percent to 10 percent effective January 25, 2016. See March 2016 Rating Decision. The Veteran’s 10 percent rating was increased again in an October 2020 Rating Decision from a 10 percent rating to a 20 percent rating effective October 1, 2020. See October 2020 Rating Decision. DC 5271 provides that a 10 percent rating is warranted for moderate limitation of motion of the ankle. A 20 percent rating is warranted for marked limitation of motion. Id. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. Id. at Plate II. The words “moderate” and “marked” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. Notably, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). Turning to the evidence, in the July 2011 VA examination, the Veteran reported symptoms of weakness, stiffness, swelling, giving way and lack of endurance. The Veteran also described experiencing flareups as often as once per day which lasted 10 hours with a severity level was a 7 out of 10. The Veteran also noted painful motion and difficulty standing or walking. The examiner, however, did not address the frequency, duration, characteristics, severity, and functional loss of each disability due to flare-ups. Additionally, range of motion testing showed dorsiflexion at 20 degrees and plantar flexion at 45 degrees. However, the examination report includes only active range of motion findings and did not include range of motion findings for passive range of motion. See July 2011 VA examination. Following the July 2011 examination, the Veteran reported intermittent pain with mild crepitus in the left ankle in a November 2012 treatment record. See June 2013 CAPRI p. 5. Additionally, the Veteran noted in the August 2013 VA Form 9 that he continued to have stiffness, weakness, and pain in his ankle. He also reported that while he has movement at times, he noted he could not walk without limping or popping. See August 2013 VA Form 9. The Veteran was afforded another VA examination in January 2016. The Veteran reported symptoms of flareups occurring twice a month which resulted in aching pain causing him to limp. The examiner, however, did not address the frequency, duration, characteristics, severity, and functional loss of each disability due to flare-ups. Additionally, range of motion testing showed abnormal or outside of normal range with dorsiflexion at 20 degrees and plantar flexion at 40 degrees. However, the examination report includes only active range of motion findings and does not include range of motion findings for passive range of motion Additionally, the examiner noted ankle instability. The Veteran reported that he uses a brace occasionally for stability during a flare up. Moreover, the examiner noted that the Veteran would be limited in jobs with essential functions that required walking on uneven surfaces and with prolonged running. See January 2016 VA examination. The Veteran was afforded another VA examination following the October 2018 Board decision. In the August 2019 examination the Veteran reported symptoms of flareups occurring twice a week that were moderate to severe in severity. The examination’s range of motion testing showed dorsiflexion at 5 degrees and plantar flexion at 30 degrees. Additionally, the examiner performed range of motion testing for repeated use over time. The results showed dorsiflexion at 5 degrees and plantar flexion at 20 degrees. Range of motion testing was also performed during a flare up. The results showed dorsiflexion at 5 degrees and plantar flexion at 20 degrees. The examiner noted that pain, weakness, fatigability or incoordination significantly limit functional ability with flare ups. The Veteran reported pain during the examination which causes functional loss. The examiner described the pain as mild to moderate pain caused by the ankle sprain condition at the achilles tendon. Moreover, the examiner found the Veteran did not have ankylosis. Moreover, the Veteran reported he uses a brace regularly. See August 2019 VA examination. With resolution of reasonable doubt in the favor of the Veteran, the Board finds that his left ankle disability warrants a 20 percent evaluation for the entire period on appeal. As noted above, the VA examination reports of record reflects that the Veteran experienced constant pain, stiffness, and instability in his left ankle which collectively resulted in functional limitations such as weakness and decreased endurance. Although the Veteran was shown to have some normal range of motion of the ankle, he has consistently reported that he could not walk without limping or having aching pain and often wore brace to assist with instability. At times, the record shows that these symptoms were sufficiently bothersome to cause functional impairment. The January 2016 examiner noted that the Veteran would be limited in jobs with essential functions that required walking on uneven surfaces and with prolonged running. Such findings constitute limitation of motion that is severe enough to equate to “marked” limitation. Moreover, they are consistent with the Veteran’s credible reports of constant, aching pain in his left ankle, accompanied by periodic flare-ups. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has considered whether staged ratings are appropriate. See Hart, 21 Vet. App. 505. However, the Veteran has consistently reported painful motion, weakness, stiffness, swelling, giving way and lack of endurance throughout the entire appeal period. Thus, rather than assigning staged ratings, the Board will afford the Veteran the full benefit-of-the-doubt and find that the totality of the evidence favors the assignment of a 20 percent rating throughout the appeal period. Additionally, the Board notes that while the June 2011, January 2016 and August 2019 VA examinations did not fulfill the requirements of both a Correia and Sharp compliant examination, the Veteran’s current rating of 20 percent is already at the highest allowable schedular rating for left ankle disability under DC 5271. See 38 C.F.R. § 4.71a; DC 5271 (2019). Therefore, a remand for a Correia and Sharp compliant examination of the left ankle disability would not serve the Veteran or VA in adjudicating his claim. Therefore, even if there is not a Correia and Sharp compliant examination in the appeal period, as the Veteran is now in receipt of the highest rating possible for limitation of motion, the Board finds that this is harmless error. Further, the Veteran’s 20 percent rating under DC 5271 is the highest available rating under that DC. The Board has considered other potentially applicable DCs; however, the Veteran’s left ankle disability has not been shown to involve any other factor or diagnosis that would warrant a rating in excess of 20 percent. The competent medical evidence of record demonstrates that the Veteran has no history of ankylosis of the ankle (the only basis for a schedular rating in excess of 20 percent) or subastragalar or talar joints, malunion of the oscalcis or astragalus, or astragalectomy. None of the remaining evidence of record including the Veteran’s lay statements suggests that he has any of these diagnoses. Consequently, a rating in excess of 20 percent under DCs 5270, 5272, 5273, or 5274 would not be appropriate. Moreover, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. Additionally, there has been neither marked interference with employment nor any hospitalizations that have resulted from the Veteran’s left ankle disability. The 20 percent evaluation under Diagnostic Code 5020-5271 fully contemplates the combined impact of the Veteran’s disability; thus, extraschedular consideration is not warranted. See 38 C.F.R. § 4.71(a). In sum, the Board finds that the Veteran’s left ankle disability more nearly approximates “marked” limitation, and therefore an increased rating of 20 percent is warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco 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.