Citation Nr: 21012019 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-36 579 DATE: March 3, 2021 ORDER A rating higher than 20 percent for left ankle limitation of motion is denied. A separate 20 percent rating for left ankle instability is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left ankle disability manifested by marked limitation of motion. 2. Throughout the period on appeal, the Veteran’s left ankle disability also manifested by moderate instability. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for left ankle limitation of motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for a separate 20 percent rating for left ankle instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to March 1975 in the U.S. Navy. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned Veterans Law Judge in June 2019. A copy of the hearing transcript is of record. This case was previously remanded by the Board in September 2019 and has now returned to the Board for appellate consideration. Left Ankle The Veteran contends that a higher rating is warranted for his service-connected left ankle disability. His left ankle disability is assigned a 20 percent rating from January 4, 2012 under DC 5271 for limitation of motion. After review of the record, the Board finds that a rating higher than 20 percent for limitation of motion is not warranted. However, a separate 20 percent rating is warranted for moderate ankle instability. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. Under the rating criteria in effect prior to February 7, 2021, DC 5271 provides that a 10 percent rating is warranted for moderate limited motion of the ankle and a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the 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; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011). Turning to the evidence of record, the Veteran was afforded a VA examination in March 2015 for his left ankle disability. However, the Board finds that the examination is inadequate for adjudication purposes because the examiner did not test the opposite joint (i.e. right ankle). See Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the Board will not consider the March 2015 VA examination. The Veteran was afforded another VA examination in August 2016 for his left ankle disability. The Veteran reported that his ankle disability was getting worse and it has almost fused itself with very limited range of motion. Additionally, he reported daily throbbing and sharp pain that is aggravated with weather, prolonged standing and walking, and prolonged sitting which causes stiffness. He also reported that stairs aggravate his ankle disability and has to walk backwards to navigate them. The examiner noted that the Veteran has swelling with weakness and difficulty with balance. Additionally, the Veteran reported daily flareups which he has to rely on other people to help him with chores and sometimes dressing, such as putting on socks. The Veteran regularly uses an Arizona ankle brace and a cane for his left ankle. On examination, range of motion testing showed dorsiflexion limited to 0 degrees and plantar flexion limited to 25 degrees. Pain and stiffness contributed to functional loss causing limited range of motion. There was objective evidence of pain with weight bearing and global ankle joint tenderness that is greatest in the anterior lateral joint line. The examiner found that pain, fatigue, weakness, lack of endurance, and incoordination significantly limit functional ability with flareups, resulting in dorsiflexion limited to 0 degrees and plantar flexion limited to 20 degrees. Additionally, the examiner found that the Veteran had disturbance of locomotion and interference with standing. Muscle strength testing for left ankle dorsiflexion and planter flexion was reduced to 4/5. The Veteran did not have ankylosis. The examiner found that ankle instability or dislocation is suspected, however laxity was not present upon testing. Regarding functional impairment, the examiner stated that the Veteran would not be able to perform physically demanding work that requires prolonged standing, walking, or climbing, but would be able to perform sedentary employment. During the June 2019 Board hearing, the Veteran testified that he has been wearing a boot for about 10-11 years. Additionally, he testified that his wife helps him with his shoes and socks and in the shower in case he falls. The Veteran also testified that he does not do well with stairs and falls at least once a month and trips more often than not, catching himself and using furniture in the house for support. The Veteran also constantly uses a cane, and sometimes uses a two-handed walker. The Veteran was afforded a VA examination in January 2020. He reported that his left ankle is sore and stiff with limited range of motion that causes sharp pain when walking and when he sits and stands he cannot get going, and if he is sitting longer than a few minutes, it is tough for him to stand. The Veteran also reported that his left ankle swells daily, and he has had 12 falls in the last 8 years. On examination, range of motion testing showed dorsiflexion limited to 5 degrees and plantar flexion limited to 20 degrees. Pain was noted on examination and contributed to limited motion. There was evidence of pain with weight bearing and there was mild tenderness of the medial lateral joint line and moderate tenderness on the anterior mortise on palpation. The examiner found that pain significantly limits functional ability with repeated use over time, resulting in dorsiflexion limited to 0 degrees and plantar flexion limited to 20 degrees. Additionally, the examiner found that pain significantly limits functional ability with flareups, resulting in dorsiflexion limited to 0 degrees and plantar flexion limited to 15 degrees. Muscle strength testing showed dorsiflexion and plantar flexion reduced to 4/5. The Veteran did not have ankylosis. The examiner found that ankle instability or dislocation is suspected, however laxity was not present upon testing. The examiner noted that the Veteran regularly uses a cane. Regarding functional impact, the examiner noted that the Veteran cannot tolerate walking, standing, lifting, or carrying, due to pain. The Veteran’s VA treatment records are consistent with the VA examination findings. Based on the foregoing, the Board concludes that a rating higher than 20 percent is not warranted under DC 5271 because the 20 percent rating assigned is the maximum rating available. This rating contemplates the Veteran’s marked limitation of motion caused by his service-connected left ankle disability symptoms, to include pain. A higher rating is only available for the ankle when ankylosis is present, however the medical evidence of record does not demonstrate ankylosis at any time during the appeal period. The Board has considered whether the Veteran is entitled to higher or additional ratings for his service-connected left ankle disability under other DCs pertaining to the ankle. However, those codes, DCs 5270, 5272, 5273, and 5274, are not for application in the present case as the record is absent for evidence of ankylosis of the left ankle, ankylosis of the left subastragalar or tarsal joint, malunion of the left os calcis or astragalus, or left astragalectomy. While the Board does not find that a higher rating is warranted under DC 5271, the Board does find that the Veteran is entitled to a separate rating for his left ankle instability. DC 5271 does not contemplate ankle instability. Accordingly, the Board finds that a rating by analogy under DC 5262 is most appropriate to rate the Veteran’s disability picture. DC 5262 provides that a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability, a 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability, a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability, and 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, DC 5262. Although there is no evidence of malunion or nonunion of the Veteran’s left tibia and fibula, the medical evidence of record shows that the Veteran has had moderate ankle instability throughout the period on appeal. Notably, the Veteran competently and credibly testified that he falls at least once a month. Additionally, the medical evidence of record shows that throughout the appeal period, the Veteran has constantly worn an ankle brace and regularly used a cane for support and has fallen due to his ankle. See e.g. June 2016 VA Treatment Records. Based on this evidence, the Board finds that the Veteran has moderate ankle instability. However, the Board does not find that the Veteran’s left ankle instability symptoms more nearly approximate marked ankle instability. As noted above, effective February 7, 2021, the rating criteria for musculoskeletal disabilities were amended. Under the new rating criteria, the maximum rating under DC 5271 is still 20 percent. Accordingly, a higher rating is not warranted under the new rating criteria. Additionally, under the new rating criteria, DC 5262 provides that malunion of the fibula is to be evaluated under DC 5256, 5257, 5260, or 5261 for the knee, or 5270 (ankylosis of the ankle) or 5271 (limitation of motion of the ankle) for the ankle, whichever results in the highest evaluation. Therefore, a separate rating would not be available under the new criteria for the Veteran’s left ankle instability, and therefore the Board finds that the rating criteria in effect prior to February 7, 2021 is more favorable to the Veteran. In conclusion, the Board finds that a rating higher than 20 percent for left ankle limitation of motion is not warranted. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. However, resolving reasonable doubt in the Veteran’s favor, the Board finds that a separate 20 percent rating for left ankle instability is warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, Associate 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.