Citation Nr: 21010161 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-24 390A DATE: February 24, 2021 ORDER Entitlement to a rating of 20 percent rating for left ankle strain is granted. FINDING OF FACT Throughout the appeal period, the Veteran’s left ankle disability has been manifested by no more than marked limitation of motion, which is the maximum schedular rating permitted for limited motion of the ankle. CONCLUSION OF LAW The criteria for entitlement to a rating of 20 percent rating for left ankle strain have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.20, 4.45, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2007 to May 2008. In November 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This matter was remanded by the Board of Veterans Appeals (Board) in a February 2018 decision ordering a new medical examination. Following the remand, the Board denied a rating in excess of 10 percent for the Veteran’s left ankle strain in an October 2019 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in a September 2020 order, the Court vacated the October 2019 Board decision and remanded the claim for further adjudication consistent with the Joint Motion for Remand (JMR). 1. Entitlement to a rating of 20 percent for left ankle strain The Veteran has claimed entitlement to a disability rating in excess of 10 percent for his left ankle disability. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). Disability evaluations are determined by the application of the Department of Veterans Affairs (VA)’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). The assignment of a particular Diagnostic Code depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The percentage ratings 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. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.1 (2018). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2018). Separate ratings can be assigned for separate periods of time based on the facts found a practice known as “staged” ratings. The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14 (2018). The Veteran’s left ankle disability is rated under DC 5271, which provides for a 10 percent rating for “moderate” limitation of motion. The maximum rating of 20 percent disabled is warranted under DC 5271 for “marked” limitation of motion. 38 C.F.R. § 4.71a , Diagnostic Code 5271. Full ankle motion includes dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. Prior to February 2021 the terms “moderate” and “marked” were not defined in the 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,” and all evidence must be evaluated in deciding increased rating claims. 38 C.F.R. § 4.6. In February 2021, 38 C.F.R. § 4.71a, Diagnostic Code 5271 was revised to define the terms “moderate” and “marked”. Moderate limitation of motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. Marked limitation of motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). When a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran generally applies. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled, in part in Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Moreover, if an increased rating is warranted only under the revised criteria, that increase may not be effective prior to the effective date of the change in the law. See Kuzma, 341 F.3d at 1329. Correspondingly, VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003. The revised criteria may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000. The Board is not precluded from applying prior versions of the applicable diagnostic codes to the period on or after the effective date of the new diagnostic codes if the prior versions were in effect during the pendency of the appeal, as is the case here. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). After review of the evidence, the Board finds that the Veteran’s left ankle disability more nearly approximates the criteria for a 20 percent rating for the entire period at issue. The Veteran has reported limited motion of his left ankle at various times from 2009 onward due to high levels of pain. Medical records show that the Veteran’s treating physicians have noted “limited” range of left ankle motion for years, often due to the Veteran’s reports of pain. For most of these medical appointments, no measurements were taken. Some records make a general mention of limited range of motion, but without further elaboration. On other occasions, the Veteran’s range of motion was tested and measured, but the limitations have been shown to be slight at best. In January 2014, the Veteran was afforded an examination which did not precisely annotate his ankle’s limitations (“decreased” range of motion noted due to guarding, but “nearly full” range of motion with passive testing; weighted range of motion not tested). The Board previously remanded this matter to afford the Veteran with a new examination of his left ankle. In May 2019, the Veteran was afforded a VA medical examination. The examiner found the Veteran did not have ankylosis in his left ankle, nor any muscle atrophy as a result of his condition. The Veteran has not had ankle surgery, and thus suffers no residuals from such treatment. The examiner noted having considered the Veteran’s lay descriptions of his pain and limitations of movement and stability. Specifically, the examiner noted that the Veteran experiences functional loss due to pain after repeated use of his ankle over time. The examiner indicated being able to describe that functional loss in terms of range of motion, and annotated dorsiflexion of 0 to 15 degrees (of 20 degree maximum range), and plantar flexion of 0 to 40 degrees (of 45 degree maximum range). Similarly, the examiner indicated being able to describe functional loss during flare-ups based on the Veteran’s lay statements during the examination. The examiner noted the same range of motion during flare-ups: 0 to 15 degrees dorsiflexion and 0 to 40 degrees plantar flexion. The examiner further indicated; the abnormal range of motion itself does not contribute to a functional loss. Thus, the Board must give consideration to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. During the examination, the Veteran reported having functional loss of limited weight bearing to 10 minutes. The examiner noted the Veteran uses constant assistive devices including a brace and cane. The Board finds that the Veteran’s painful flare-ups do occur, and that the Veteran’s range of motion is not limited during flare-ups. The Board further finds additional functional loss due to pain and weakness causing additional disability beyond range of motion. The Board has considered whether a higher schedular rating under other potentially applicable schedular criteria is warranted during the rating period. Diagnostic Code 5270 provides for a higher rating based on ankylosis of the ankle, but the record indicates that the Veteran does not have ankylosis. In answering the question as to which of two ratings applies under diagnostic code 5270, the Board finds that the evidence of record demonstrates that the Veteran’s ankle disability more nearly approximates marked limitation of motion as provided in the rating criteria in effect prior to February 7, 2021, as there is competent and probative evidence shows functional loss due to pain and weakness causing additional disability beyond range of motion. Resolving any doubt in favor of the Veteran, the Board finds that a 20 percent rating for the service connected left ankle strain is granted for the entire appeal period. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lang, Attorney Advisor 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.