Citation Nr: 21011486 Decision Date: 03/02/21 Archive Date: 03/01/21 DOCKET NO. 15-31 248 DATE: March 2, 2021 ORDER For the rating period on appeal prior to September 15, 2020, an initial 20 percent rating, but not higher, for residuals of a right tibia/fibula fracture, is granted. Beginning September 15, 2020, a rating higher than 20 percent for residuals of a right tibia/fibula fracture is denied. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the residuals of the right tibia/fibula fracture manifested by symptoms that more nearly approximate marked limitation of motion of the right ankle for the entire appeal period, and there is no evidence of ankylosis. CONCLUSIONS OF LAW 1. For the rating period on appeal prior to September 15, 2020, the criteria for a 20 percent rating, but not higher, for residuals of a right tibia/fibula fracture are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2019). 2. From September 15, 2020, forward, a rating higher than 20 percent for residuals of a right tibia/fibula fracture are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code (DC) 5271 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from October 1988 to November 1988. This appeal stems from an October 2013 rating decision that granted service connection for residuals of a right tibia/fibula fracture and assigned an initial 10 percent rating. In April 2020, the Board remanded the claim for further development. Subsequently, in an October 2020 rating decision, the RO increased the Veteran’s rating to 20 percent, effective September 15, 2020. The case has since returned to the Board for further appellate consideration. Lastly, the Board notes that the October 2020 rating decision also granted service connection claims for cervical and lumbar spine disabilities as well as bilateral carpal tunnel syndrome. This is a full grant of the benefits sought on appeal and those issues are no longer in appellate status. Initial Rating for Residuals of a Right Tibia/Fibula Fracture Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of 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. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For the initial rating period on appeal, the Veteran’s right ankle disability is assigned a 10 percent rating prior to September 15, 2020, and a 20 percent rating thereafter pursuant to DC 5271. Under DC 5271, the diagnostic code for limitation of motion of the ankle, a 10 percent rating is warranted with “moderate” limitation of motion and a 20 percent rating where there is “marked” limitation of motion. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion, and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” Spellers v. Wilkie, 30 Vet. App. 157 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Analysis In a May 2012 statement in support of claim, the Veteran indicated that she continued to have pain as a result of her right tibia/fibula fracture. According to May 2012 private treatment records, the Veteran had right leg tibia/fibula pain that was treated with Voltaren cream. In September 2013, the Veteran underwent a VA ankle conditions examination, at which time the examiner rendered a diagnosis of healed fracture of the right distal tibia and fibula, status-post closed reduction. The Veteran reported that she continued to have right ankle swelling and pain at night. She reported having flare-ups that were described as inability to stand for long periods of time, walk quickly, run, skate, or play sports. She also noted that she woke up at night from the pain and could not lay on her right side as a result. On physical examination, range of motion of the right ankle revealed plantar flexion to 40 degrees and ankle dorsiflexion to 10 degrees, both with objective evidence of painful motion at 0 degrees. There was no additional limitation in range of motion following repetitive use testing with three repetitions. Functional loss/impairment was due to less movement than normal, weakened movement, incoordination/impaired ability to execute skilled movements smoothly, pain on movement, and extremely slow active movement during range of motion testing. There was no localized tenderness or pain on palpation of the joints/soft tissue of the ankle. Muscle strength testing revealed active movement against some resistance (4/5) for both ankle plantar flexion and dorsiflexion. There was no joint instability and no ankylosis. The examiner added that the Veteran had very slow antalgic gait with stiff carriage but no definite limping due to the diagnosed disability. The Veteran did not wear her ankle brace on the day of the examination and performed all range of motion testing and strength testing in slow motion, which required prompting for more effort on strength testing. The Veteran was unable to stand/walk on heels, on tiptoe, or in tandem. She used a brace regularly and a cane occasionally. According to June 2014 VA treatment records, it was noted that the Veteran had marked tenderness with guarding to palpating distal leg above the malleoli and anterolaterally two thirds way up the leg, especially over anterior tibia with mild pain in the pretibial area even just by active ankle dorsiflexion. In September 2020, the Veteran underwent an ankle conditions compensation examination, at which time the examiner confirmed diagnoses of residuals of right tibia/fibula fracture and right ankle sprain that resolved. The Veteran reported having throbbing pain in the right ankle and just above the ankle. The pain was worse in the morning, but as long as she stretched, she was able to go up/down steps. She took Aleve as needed. She denied having flare-ups and/or functional loss/impairment. Upon physical examination, range of motion of the right ankle revealed dorsiflexion to 15 degrees and plantar flexion to 40 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on examination but did not result in/cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing and/or crepitus. There was no additional loss of function or range of motion after repetitive use testing with three repetitions. The examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner estimated that after repetitive use over time, pain, fatigue, and weakness, will result in dorsiflexion to 10 degrees and plantar flexion to 5 degrees. There were no other factors contributing to the disability. Muscle strength testing was normal (5/5) with no evidence of muscle atrophy. There was no ankylosis. There was no evidence of right ankle instability. On review, the Board finds that an initial 20 percent rating is warranted for the entire rating period on appeal. As discussed above, throughout the initial rating period no appeal, the Veteran had difficulty with repeated use over time and pain on movement. She also had an antalgic gait, which the 2013 examiner noted was due to the service-connected disability. The probative evidence additionally showed continuous ankle pain, decreased range of motion, and swelling. Accordingly, the Board finds the above symptoms to more nearly approximate symptoms indicative of marked limitation of the right ankle motion, when also considering limitations during a flare-up and/or with repeated use over a period of time, which warrants a 20 percent disability rating under DC 5271 for the rating period prior to September 15, 2020. As noted, the RO has already assigned a 20 percent rating beginning September 15, 2020, therefore the Veteran is now in receipt of a 20 percent rating for the entire period on appeal. A 20 percent rating is the maximum rating under DC 5271. Whereas in this case, the Veteran is being awarded the maximum rating assignable for limitation of motion (i.e., 20 percent under DC 5271), additional consideration of the provisions of DeLuca is not required. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Accordingly, a higher rating is not warranted under the governing criteria pertaining to limitation of ankle motion. The Board next considered the possibility of a higher rating under another diagnostic code, Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Under 38 C.F.R. § 4.71a, DC 5270, a 30 percent rating is warranted for: ankle, ankylosis of: In plantar flexion between 30 degrees and 40 degrees; or in dorsiflexion between 0 degrees and 10 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Shipwash v. Brown, 8 Vet. App. 218, 221(1995). However, the evidence in this case does not show ankylosis of the ankle. Indeed, the Veteran still maintains motion in the right ankle, albeit limited. In sum, the Board concludes that the disability rating of 20 percent, but no higher, is assigned for the entire rating period. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7. Finally, the Board notes that neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.