Citation Nr: 21011949 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 07-31 903 DATE: March 3, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for left ankle arthritis is denied. An initial disability evaluation in excess of 10 percent for right ankle arthritis prior to June 22, 2009, is denied. Entitlement to a disability rating of 20 percent, and no more, for right ankle arthritis from June 22, 2009, is granted. FINDINGS OF FACT 1. The Veteran's left ankle arthritis is manifested by painful, marked limited motion, arthritis, weakness, and swelling; left ankle joint fixation or ankylosis has not been demonstrated. 2. For the time period prior to June 22, 2009, Veteran's right ankle arthritis was manifested by painful, moderate limited motion, arthritis, weakness, and swelling; right ankle joint fixation or ankylosis was not demonstrated. 3. From June 22, 2009, the Veteran's right ankle arthritis has been manifested by painful, marked limited motion, arthritis, weakness, and swelling; right ankle joint fixation or ankylosis has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for left ankle arthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2019). 2. The criteria for entitlement to a rating in excess of 10 percent for right ankle arthritis prior to June 22, 2009 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2019). 3. The criteria for entitlement to a disability rating of 20 percent, and no more, for right ankle arthritis from June 22, 2009, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to January 1990. This matter comes to the Board of Veterans’ Appeals (Board) from a June 2005 rating decision which, in pertinent part, granted an increased 20 percent rating for left ankle arthritis. In September 2010, the Veteran and his spouse testified at a Travel Board hearing. A copy of the transcript is of record. In February 2011, the Board remanded the issue for further development, including obtaining a VA examination. This matter also comes to the Board from a March 2011 rating decision effectuating a February 2011 Board decision that granted service connection for right ankle arthritis. The RO assigned a 10 percent evaluation, effective February 16, 2005. In May 2012, the Veteran was notified that the VLJ who presided over his September 2010 Board hearing was no longer with the Board and of his right to request another hearing. In September 2012, the Veteran and his spouse testified before the undersigned VLJ at a Central Office hearing in Washington, D.C. A copy of the transcript is of record. In November 2012, the Board remanded the issue of entitlement to an increased initial rating for right ankle arthritis for the issuance of a statement of the case (SOC), as well as the increased rating for left ankle arthritis, as intertwined with other remanded issues. In December 2017, the Board noted that while the Veteran had not perfected an appeal for the increased initial rating for right ankle arthritis, the RO indicated the issue was on appeal in an October 2016 supplemental statement of the case (SSOC). Accordingly, the Board accepted jurisdiction over the claim, and remanded the claims of increased ratings for left and right ankle arthritis for further development, to include obtaining an adequate VA examination to assess the severity of the Veteran’s bilateral ankle disability. The Board once again remanded this matter for further development in October 2019. The requested development has been completed and the matter is now ready for appellate review. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the 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 evaluations shall be applied, the higher evaluation 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. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might 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 Veteran seeks a higher rating for his service-connected right and left ankle disabilities, which are currently rated under Diagnostic Code 5271. Diagnostic Code 5271 provides that a 10 percent rating is assignable for moderate limited motion of the ankle. A 20 percent rating is assignable for marked limited motion of the ankle. 38 C.F.R. § 4.71, Diagnostic Code 5271 (2019). Normal dorsiflexion of the ankle ranges from 0 to 20 degrees. Normal plantar flexion of the ankle ranges from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II (2019). Diagnostic Code 5270 is also potentially applicable to this claim. It provides that a rating of at least 20 percent is assignable for ankylosis of the ankle. If an ankle is ankylosed in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees, a 30 percent rating is assignable for the ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2019). Ankylosis is the stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79 (1996). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2019). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In this case, the Board finds that the medical evidence of record is sufficient to decide the case and is compliant with prevailing caselaw. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). At the time of a May 2005 VA examination, it was noted that the Veteran had had a MRI of the ankles in February. The right ankle revealed thickening of the ligaments of moderate severity secondary to old repeated ankle trauma. There were considerable changes in the talonavicular joints, bilaterally, with marked degenerative and traumatic arthritis noted. He walked slowly with a restricted stride. The ankles were both moderately swollen. There was moderate thickening of the ligaments. The ankles dorsiflexed 20 degrees and plantar flexed 20 degrees, with mild pain and moderate weakness. There was no instability noted. The ankles had marked lack of endurance, no lack of coordination and marked restriction of repetitive activity. At the time of an April 2009 VA examination, it was noted that the Veteran wore braces on both ankles and an Aircast to support his feet. He walked with a small stride, but no virtual limp. The left ankle had significant spurring at the ankle on the medial side. This was large. The left ankle did not dorsiflex and plantarflexed only 10 degrees with mild pain and weakness throughout. There was no laxity noted with stress to the left ankle. Any strain with repeated motion on the lateral side of the left ankle caused significant pain that became worse with repeated stress. There was no subtalar motion on the left ankle. The right ankle had mild swelling and mild tenderness with pain on any forced or repeated use of the right ankle. The right ankle dorsiflexed 10 degrees and plantarflexed l5 degrees with mild weakness and mild pain that was aggravated by repeated stressing. There was no subtalar motion on the right ankle. X-rays of the ankles in March had revealed narrowing of the ankle joint and subtalar joints on both ankles. There were no specific lesions on the talus of either foot. There was moderate lack of endurance but no lack of coordination noted on examination of the left ankle and moderate restriction of repeated use. There was mild lack of endurance but no lack of coordination noted on examination of the right ankle and mild restriction of repeated mild use. The examiner rendered a diagnosis of bilateral traumatic arthritis of the ankles that was directly related to his period of military service. The left ankle was much worse than the right. From a functional standpoint, there was no motion in the left ankle and only 10 degrees of possible active and passive motion in the right ankle. There was accompanying traumatic arthritis noted in the ankle joint and the subtalar joints. There was permanent restriction of activity regarding any occupation. He could not be on his feet all day. He was restricted to being on his feet and standing and walking to one-half day. He had Aircasts and braces that relieved the pain in the ankles. He needed an occasional pain pill, Vicodin. At the time of a June 22, 2009 private VA examination, the Veteran had ankle joint dorsiflexion with the leg extended from 0 to 5 degrees, bilaterally, and with the knees flexed, 8 degrees, bilaterally. Plantar flexion at the ankle was 30 degrees to the right and 25 degrees to the left. The Veteran had no inversion or eversion capability at the subtalar joint. At the time of a January 2018 VA examination, the Veteran was diagnosed as having degenerative arthritis of both ankles. The Veteran did not report having any flare-ups. He had right and left dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was evidence of pain with weightbearing. Muscle strength was 5/5 and there was no muscle atrophy. There was no ankle instability reported. The Veteran was noted to use a cane on a regular basis. Treatment records reveal that the Veteran was prescribed large ankle sleeves in January 2018. He reported that his ankle tended to roll on him. July 2018 treatment records noted that the Veteran reported having ankle instability. Large ankle sleeves were again ordered in May 2019. At the time of a December 2019 VA examination, the Veteran was diagnosed with traumatic arthritis of the right and left ankles. The Veteran reported that his ankles continued to hurt and that he was using bilateral ankle braces. He noted having swelling in the ankles, but not the feet. The ankles were more equal in pain now than in the past. The ankles hurt all of the time and the pain was worse with use and with weather changes. He used the braces all the time now. He could walk about a city block and then would have increased pain and need to sit. The pain was around the entire ankle and the motion was very limited. He occasionally took hydrocodone as needed for the ankle pains. He took Lyrica for the diabetic nerve pain. The ankle pains were at best 5/10, were 6/10 most of the time, and would go to 7/10 at worst. He used a cane at times. The Veteran noted having flareups with weather changes, especially the cold when the ankle pain flared up to 7/10 and would last until the weather changed back. The Veteran indicated that the ankles caused impairment with standing, walking, climbing stairs and jumping. Physical examination revealed dorsiflexion to 5 degrees and plantar flexion to 45 degrees on the left and right. There was pain with weightbearing and moderate tenderness over the ankle joint and the posterior tibial tendons. Repetitive motion reveals no additional limitation of motion. The examiner indicated that pain, weakness, fatigability or incoordination would significantly limit functional ability, with repeated use over a period of time, with dorsiflexion being limited to 0 degrees and plantar flexion being limited to 15 degrees for both ankles. Muscle strength was reported as 5/5 and the Veteran was specifically found to not have ankylosis. Ankle instability was suspected but testing revealed negative results. The Veteran was noted to use braces on a regular basis. He also reported using a cane when the ankle pains were at their worst, but he used the bilateral braces daily. As to the instability noted in VA treatment records, the examiner indicated that with regard to the instability being placed onto the diagnosis list, there was no instability documented in the examination for the cited dates. The examiner further indicated that no ankle instability was found on examination. The examiner noted that arthritis in general tended to stiffen joints and decrease range of motion and instability. The examiner stated that if the Veteran had had instability of the ankles in the past, the abnormal motions caused progression of arthritis. Left Ankle As to the left ankle, a 20 percent disability evaluation has been assigned throughout the rating period. In this case, it is not in dispute that the Veteran has significant pain with limitation of motion of the left ankle. This is reflected by the 20 percent rating that has been assigned, which is the maximum evaluation that may be assigned for limitation of motion of an ankle. See 38 C.F.R. § 4.71a, Code 5271. In order to assign a higher rating, the record must demonstrate ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. VA recognizes ankylosis as a fixed or consolidated position of the joint at a particular degree of divergence from the normal position. In this case, all examiners and clinicians actually measured movement of the joint through a range of motion of the ankle that was abnormal but not immobile in a fixed position. The fact remains that the Veteran does retain some motion of the left ankle as evidenced by the objective findings delineated in the VA examinations and private treatment records above. Therefore, the Veteran's ankle is not ankylosed and the rating criteria for ankylosis (DCs 5270, 5272) are not for application. Notably, functional factors specified in DeLuca are also not applicable where the highest rating has been granted for limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Under Johnston, once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain. The Board has considered whether any other diagnostic code would allow for an even higher rating for the Veteran's ankle disability. However, DCs 5272 through 5274 do not provide for a disability rating in excess of 20 percent. The Board acknowledges that the Veteran has also been diagnosed with degenerative arthritis of the left ankle. However, by the express terms of DC 5003 (which contemplates degenerative arthritis), separate ratings may not be assigned for degenerative arthritis and limitation of motion of the affected joint. Id. Moreover, to assign separate ratings for arthritis and limitation of motion of the ankle would result in double compensation for the same disability, in violation of the rule against pyramiding. See 38 C.F.R. § 4.14 (2019). In short, the Veteran's left ankle arthritis has been manifested by painful, marked limited motion, weakness, and swelling throughout the appeal period; however, left ankle joint fixation or ankylosis has not been demonstrated. Therefore, the claim for any higher rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). Right Ankle Period Prior to June 22, 2009 After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of marked limited motion of the right ankle prior to June 22, 2009, so the criteria for an initial disability rating in excess of 10 percent under DC 5271 were not approximated or met during this time period. Throughout this period, the right ankle disability was manifested by limitation of dorsiflexion to no less than 10 degrees (out of 20 degrees) and limitation of plantar flexion to no less than 15 degrees (out of 45 degrees), including after consideration of orthopedic limiting factors (38 C.F.R. §§ 4.40 , 4.45, 4.59, Deluca). The Board finds that, under the facts of this case, the 10 degree loss demonstrated on right ankle dorsiflexion, and the 30 degree loss demonstrated on right ankle plantar flexion amounts to no more than moderate limitation of left ankle motion, which is consistent with a 10 percent schedular rating; therefore, a higher initial rating under DC 5271 is not warranted for any period. 38 C.F.R. §§ 4.3, 4.7. The Board notes that no higher or separate schedular rating is warranted under any of the other diagnostic codes pertaining to the ankle. The evidence shows that the right ankle disability was not manifested by ankylosis; therefore, a higher rating is not warranted under either DC 5270 for ankle ankylosis or DC 5272 for subastragalar or tarsal joint ankylosis. Also, the evidence did not show that the right ankle had undergone astragalectomy or was manifested by malunion of os calcis or astragalus; therefore, a higher rating under DC 5274 or DC 5273 was not warranted. 38 C.F.R. § 4.71a. Period from June 22, 2009 At the time of a June 22, 2009 private examination, the Veteran was found to have ankle joint dorsiflexion with the leg extended from 0 to 5 degrees, and with the knees flexed, to 8 degrees. Plantar flexion at the ankle was 30 degrees on the right. The Veteran had no inversion or eversion capability at the subtalar joint. The Board finds this akin to marked limitation of motion, warranting a 20 percent disability evaluation. As noted above, this is the maximum evaluation that may be assigned for limitation of motion of an ankle and in order to assign a higher rating, the record must demonstrate ankylosis. VA recognizes ankylosis as a fixed or consolidated position of the joint at a particular degree of divergence from the normal position. In this case, all examiners, clinicians, and the private treatment providers actually measured movement of the joint through a range of motion of the ankle that was abnormal but not immobile in a fixed position. The fact remains that the Veteran does retain some motion of the right ankle as evidenced by the objective findings delineated in the VA examinations and private treatment records above. Therefore, the Veteran's ankle is not ankylosed and the rating criteria for ankylosis (DCs 5270, 5272) are not for application. The Board has considered whether any other diagnostic code would allow for an even higher rating for the Veteran's ankle disability. However, DCs 5272 through 5274 do not provide for a disability rating in excess of 20 percent. The Board acknowledges that the Veteran has also been diagnosed with degenerative arthritis of the right ankle. However, by the express terms of DC 5003 (which contemplates degenerative arthritis), separate ratings may not be assigned for degenerative arthritis and limitation of motion of the affected joint. Id. Moreover, to assign separate ratings for arthritis and limitation of motion of the ankle would result in double compensation for the same disability, in violation of the rule against pyramiding. See 38 C.F.R. § 4.14 (2019). In short, the Veteran's right ankle arthritis has been manifested by painful, marked limited motion, weakness, and swelling from June 22, 2009; however, right ankle joint fixation or ankylosis has not been demonstrated. Therefore, the claim for any higher rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). (Continued on the next page)   The Board notes that regulations regarding limitation of motion of the ankle changed effective February 7, 2021. The assigned percentages remained the same for the disabilities, with the ankle disabilities still being described as either moderate (warranting a 10 percent disability evaluation under DC 5271) or marked (warranting a 20 percent disability under DC 5271). The new regulation defines moderate as less than 15 degrees dorsiflexion or less than 30 degrees of plantar flexion. It defines marked as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. These regulations are not retroactive. Applying these regulations would not warrant a higher disability evaluation from February 7, 2021 for either the right or left ankle arthritis. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.