Citation Nr: 21013015 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-20 301 DATE: March 8, 2021 ORDER Entitlement to an initial 20 percent rating for left ankle osteoarthritis (left ankle disability) is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT Throughout the appeal period, the Veteran's left ankle disability, to include consideration of flare-ups, more nearly approximated marked limitation of motion. CONCLUSION OF LAW The criteria for a 20 percent rating for left ankle disability are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2001 to November 2005, and from July 2006 to November 2011. This cases comes to the Board of Veterans' Appeals (Board) from a December 2013 decision in which the Department of Veterans Affairs (VA) Regional Office (RO), among other things, granted service connection for recurrent left ankle sprain and assigned a noncompensable disability rating, effective July 22, 2013. In January 2014 the Veteran filed a notice of disagreement (NOD) and in April 2014 the RO issued a statement of the case (SOC). In May 2014 the Veteran filed a substantive appeal (via a VA Form 9). In August 2017 the Veteran testified during a Board videoconference hearing before a Veterans Law Judge (VLJ) who has since retired. A VLJ who conducts a hearing on appeal must participate in any decision made on that appeal. 38 C.F.R. § 20.707(c) (2018). In a January 2021 letter, the Board offered the Veteran another opportunity for a hearing before a current VLJ. As the Veteran did not respond it is assumed that the Veteran does not want a hearing before a different VLJ. In a December 2019 rating decision the RO denied entitlement to a total disability rating based on individual unemployability (TDIU), apparently as part and parcel of the ratings for right ankle and/or sleep apnea and asthma. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (the issue of entitlement to a TDIU is part and parcel of a rating claim when raised by the record). Moreover, when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). In this case, the issue of entitlement to a TDIU has not been raised as part and parcel of the claim for a higher initial rating for left ankle disability. Although a letter from a family nurse practitioner attached to the May 2014 substantive appeal indicated that the pain and inability to walk without pain and swelling is inhibiting the Veteran’s employability, there is no evidence that the left ankle disability precludes substantially gainful employment. Consequently, the Board will not address the issue of entitlement to a TDIU as part of the rating claim on appeal. Moreover, the Veteran specifically requested a 20 percent rating in his May 2014 NOD and did not modify this request in his substantive appeal but rather noted marked limitation of motion which is the symptom required for a 20 percent rating. Thus, the Board is granting the benefit sought in full and will not discuss compliance with the prior remand instructions. Higher initial rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 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 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 Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Left ankle disability The Court has emphasized that when assigning a disability rating it is necessary to consider limitation of a joint's functional ability due to flare-ups, fatigability, incoordination, and pain on movement, or when it is used repeatedly over a period of time, functional loss due to flare-ups, fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, DCs 5010-5271. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 5010-5271 reflects that the Veteran's left ankle disability is partially described as post-traumatic arthritis under DC 5010 and that the rating assigned is based on limitation of ankle motion under DC 5271. Under DC 5271, a 10 percent rating is warranted for moderate limitation of ankle motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and a 20 percent rating is warranted for marked limitation of ankle motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Under DC 5010, post-traumatic arthritic is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Relevant to the present case, 38 C.F.R. § 4.71a was amended effective February 7, 2021, which revised DC 5010 and removed the instruction to rate traumatic arthritis as degenerative arthritis under DC 5003. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Additionally, definitions were added to DC 5271 to describe what constitutes moderate and marked limitation of motion and gout is now rated in accordance with DC 5003 instead of 5002. Id. A November 2019 VA examiner noted that the Veteran’s left ankle range of motion measured dorsiflexion to 20 degrees and plantar flexion to 15 degrees. The VA examiner noted that the Veteran’s range of motion contributes to functional loss and makes it difficult to walk up steps and long distances. There was no evidence of pain with weight bearing and the Veteran was able to perform repetitive-use testing with at least three repetitions. The VA examiner estimated that during a flare-up the Veteran’s left ankle would measure dorsiflexion to 10 degrees and plantar flexion to 15 degrees. A February 2019 VA examiner noted that the Veteran’s left ankle range of motion measured dorsiflexion and plantar flexion to 30 degrees. The VA examiner noted that the Veteran’s range of motion contributes to functional loss. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The VA examiner was not able to describe the Veteran’s functional loss in terms of range of motion during flare-ups. The VA examiner noted that such a determination would be speculative and inaccurate as the limitation of range of motion and functional ability depends upon severity of flare-up, degree of use over variable duration, intake of pain medications, and tolerance of pain. At the August 2017 Board hearing the Veteran testified that his left ankle was swollen and caused him pain when walking. The Veteran testified that he has an ankle brace but does not wear it daily. A June 2014 VA examiner noted the Veteran used a cane and was unable to work while limping as his job requires physical labor. A March 2014 VA examiner noted that the Veteran did not perform range of motion testing due to pain from edematous. A January 2014 VA examiner noted that the Veteran’s gout flares cause him to miss work. The VA examiner noted that there was no range of motion during gout attacks. Prior to February 7, 2021, DC 5271 did not define moderate or marked limitation of motion, but rather, evaluated the evidence in such a manner that its decision would be considered "equitable and just." 38 C.F.R. § 4.6. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In the present case, the Veteran has not exhibited range of motion testing that would warrant a 20 percent rating. Both the November and February 2019 VA examiners measured the Veteran’s limitation of motion greater than 5 degrees dorsiflexion and above 10 degrees plantar flexion. Under the current rating criteria this would warrant a 10 percent rating as the November 2019 VA examiner accounted for flare-ups. However, throughout the appeal period multiple VA examiners and physicians have noted that the Veteran’s left ankle disability either disrupts his ability to work or prevents him from working. The Board notes that under the old criteria DC 5271 is more favorable to the Veteran and will be applied throughout the appeal period. Therefore, as the Veteran’s left ankle disability substantially affected his ability to work his disability is better described as marked and a maximum 20 percent rating is warranted. A rating higher than 20 percent is not warranted at any time during the claim period. The 20 percent rating that has been awarded for the service-connected left ankle disability is the maximum schedular rating for limitation of ankle motion under DC 5271. Therefore, the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59) do not provide a basis for any rating higher than 20 percent. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board has also considered whether separate ratings could be assigned under any other applicable DCs for which the Veteran is not currently receiving compensation. Evaluating an ankle disability under DC 5270 or DC 5272 requires a finding of ankylosis. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28TH Ed. 1994) at 86). In this case, the absence of ankle ankylosis was specifically noted during the November and February 2019 VA examinations. Moreover, there is no evidence of any malunion of the os calcis or astragalus or any astragalectomy as required under DC 5273. Thus, no separate and/or higher ratings are warranted on the basis of any such impairment at any time during the claim period. See 38 C.F.R. § 4.71a, DCs 5270, 5272-5274. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.