Citation Nr: 21013399 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-22 413 DATE: March 9, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for service-connected residuals of left ankle sprain (hereafter “left ankle disability”) prior to April 16, 2019 is denied. Entitlement to a 20 percent evaluation, but no higher, for a left ankle disability after April 16, 2019 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to April 16, 2019, the Veteran’s left ankle disability manifested by, at worst, dorsiflexion to 10 degrees and plantar flexion to 30 degrees, and there was no evidence of ankylosis, malunion, or astragalectomy. The Veteran’s service connected fibula impairment is rated separately. 2. Since April 16, 2019, the Veteran’s left ankle disability is manifested by limitation of dorsiflexion to 5 degrees and plantar flexion to 15 degrees at worst, exhibiting painful motion and slight muscle weakness. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for a service-connected left ankle disability prior to April 16, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2020 and as amended effective February 7, 2021 by 85 Fed. Reg. 230 (Nov. 30, 2020)). 2. The criteria for entitlement to a 20 percent evaluation, but no higher, for a left ankle disability after April 16, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2020 and as amended effective February 7, 2021 by 85 Fed. Reg. 230 (Nov. 30, 2020)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1975 to April 1977. This appeal is before the Board of Veterans’ Appeals (Board) from July 2012 and June 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 the Board remanded the issues on appeal in order to: associate updated VA treatment records with the claims file; request and obtain a signed release of information for outstanding private treatment records; and schedule the Veteran for a VA examination to address the nature and etiology of the Veteran’s left distal fibula disability, and determine the current nature and severity of his service-connected left ankle disability. The Board finds the RO substantially complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Neither the Veteran nor his representative has raised any specific duty to notify or duty to assist issues regarding this claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board … to search the record and address procedural arguments when the Veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran and his representative were notified by the Board via a January 4, 2021 letter that his appeal had returned to the Board, and no further evidence or argument has been submitted since. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the November 2020 Supplemental Statement of the Case (SSOC) and are not repeated here in full. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle disability The Veteran contends that he is entitled to a higher rating for his ankle disability. He stated that he has suffered one broken ankle and countless ankle sprains due to imbalance from favoring his right side due to his left ankle injury. See Veteran’s Lay Statement, March 2011. The Veteran’s left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. 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. Prior to the regulatory change, under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted for moderate limited motion of the ankle, which is defined in the diagnostic code as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A 20 percent rating is warranted for marked limited motion of the ankle, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Although the pre-February 2021 rating schedule did not define the terms “moderate” and “marked” in Diagnostic Code 5271, guidance from VBA’s M21-1 Adjudication Procedures Manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See id. The M21-1 is not binding on the Board and, to rely on the M21-1, the Board must conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. See Overton v. Wilkie, 30 Vet. App. 257 (2018). The Board finds that the M21-1 may be relied upon as a factor based on VA’s proposed revisions to Diagnostic Code 5271 made in February 2003 and August 2017. See 68 Fed. Reg. 6998 (Feb. 11, 2003); 82 Fed. Reg. 35719 (Aug. 1, 2017). In February 2003, VA hired an outside consultant, who convened a panel of non-VA specialists, to review the portion of the rating schedule dealing with the musculoskeletal system to formulate recommendations. VA proposed to adopt many of the recommendations, including defining “moderate” and “marked” similarly to the current M21-1 guidelines to ensure consistent evaluations. See 68 Fed. Reg. at 7018. In August 2017, VA proposed to redefine “moderate” and “marked” exactly as listed in the M21-1 and the proposal noted that “as VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” 82 Fed. Reg. at 35723. The Board finds that the bases underlying VA’s proposed rules, which were created with non-VA specialists, are persuasive reasons to partly rely on M21-1 in rating ankle disabilities under Diagnostic Code 5271 prior to implementation of the final regulation. 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 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. 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 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. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Regarding the Veteran’s ankle condition, the Board finds that a staged rating is warranted as the evidence shows distinct periods where his left ankle exhibited symptoms that would warrant different ratings. Prior to April 2019 The Veteran filed a claim for an increased disability rating for his left ankle in February 2011 and submitted a lay statement regarding his ankle. He indicated that he had to teach himself how to walk again when he first left the military, stating that he had to stand with his weight on his right side, leading to back problems as well. The instability and favoring of his right side led to one broken ankle and “countless ankle sprains.” See March 2011 Veteran’s Lay Statement. Additionally, in a March 2011 statement from his ex-wife, she stated that she had seen the Veteran struggle to find relief and suffering through pain, a broken ankle, sprained ankles and an unsteady gait due to his previous ankle injury. At the Veteran’s October 2011 VA examination, the Veteran indicated that he could walk one-quarter mile before having to stop due to pain. That pain could flare up to a 10 out of 10 on a pain scale with activity, making the flare ups a daily occurrence. His left ankle flexion was 40 degrees and his left ankle dorsiflexion was 10 degrees, with painful motion of both. The Veteran was able to repeat the motion testing and did not have any additional limitations. The examiner indicated that the functional loss contributing factors of the Veteran’s disability were less movement than normal and pain on movement. The Veteran did have localized tenderness on palpation, but had normal strength, normal stability, and no evidence of ankylosis. Imaging of the Veteran’s left ankle completed in October 2011 showed calcification in his Achilles tendon, no fracture or destructive change, and a contour irregularity in the lateral malleolus. The Veteran underwent another VA examination in April 2013. The examiner indicated that the left ankle plantar flexion was 45 degrees or greater with no objective evidence of painful motion. The Veteran’s left ankle dorsiflexion was 10 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with no additional limitation in range of motion. The Veteran’s functional loss was described as less movement than normal and pain on movement. The Veteran exhibited pain on palpation and laxity on the anterior drawer test of his left ankle, a joint stability test. The Veteran did not have ankylosis or laxity on the talar tilt test of his left ankle. Additionally, the examiner noted that the Veteran’s ankle condition would impact his ability to work due to pain with prolonged weightbearing. The Veteran also submitted a private medical record, dated July 2013 from D.B.R, PA-C, a physician’s assistant at an orthopedic clinic. D.B.R. stated that the Veteran does shift his weight to the right when standing and has an antalgic gait. During a May 2014 VA examination, the examiner noted that the Veteran had helped a friend haul hay the day prior. They then made dinner and sat around and talked. VA medical records indicate that the Veteran was on long-term opioid treatment for low back, leg and left ankle pain in May 2016. In a February 2017 VA examination, the Veteran reported flare ups of the left ankle, which he described as a sharp pain that occurs during cold and rainy weather. He also reported that the pain impaired prolonged walking and standing or climbing. The examination showed that the dorsiflexion of his left ankle was limited to 10 degrees and plantar flexion was limited to 30 degrees. His right ankle’s range of motion was within normal limits. No pain was noted on the examination, to include during passive testing and non-weightbearing testing, there was no objective evidence of localized tenderness, nor was there objective evidence of crepitus bilaterally. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss. The examiner indicated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use, or during a flare up. There were no additional contributing factors indicated, the Veteran’s muscle strength was normal, and there was no ankylosis present bilaterally. The Veteran did show muscle atrophy in his left lower extremity. His left calf was one centimeter smaller than his right, measured at 10 centimeters below the calf, measuring 34 centimeters and 35 centimeters respectively. Joint stability was tested, and ankle instability or dislocation was suspected bilaterally. However, both the anterior drawer test and the talar tilt test did not show laxity compared with the opposite side bilaterally. The functional impact of the Veteran’s disability impacts prolonged walking and standing, repetitive climbing, kneeling and squatting. At a VA appointment to discuss medications, the provider noted that the Veteran’s gait and station were without abnormalities. See February 2018 VA treatment records. At worst, the Veteran’s left ankle dorsiflexion was found to be 10 and the plantar flexion was limited to 30 degrees. The Veteran’s range of motion would be considered moderate pursuant to the M21-1 provisions in effect prior to the 2021 regulatory amendments. Again, this guidance was based on recommendations from a panel of non-VA specialists who reviewed VA’s rating schedule for musculoskeletal disabilities, and is therefore persuasive guidance for the Board to rely on these provisions. The Board also considered the Veteran’s reports of pain, stiffness, and swelling related to his service-connected ankle disability. Objective evidence of pain on motion was only noted on the October 2011 examination. The Veteran was able to perform repetitive-use testing with no additional range of motion loss at each examination. Moreover, the Veteran’s ankle strength was noted to be normal at each examination. The Veteran’s current 10 percent rating under Diagnostic Code 5271 for this time period contemplated such painful, though moderate, limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating, "pain itself does not rise to the level of functional loss;" "pain must affect some aspect of the normal working movements of the body...in order to constitute functional loss;" and "painful motion alone is not [the equivalent of] limited motion" (internal quotation marks omitted)); Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (disability occurs "if a veteran cannot perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance" (citing 38 C.F.R. § 4.40)). The Board also considered the examiner’s findings in that the Veteran had left ankle functional loss and/or functional impairment of pain on motion and less movement than normal in October 2011 and April 2013, as well as difficulty with prolonged walking and standing, and repetitive kneeling and squatting in February 2017. The Veteran did exhibit an antalgic gait at times, and a favoring of his right side; however, he did always not have an antalgic gait. Finally, although the Veteran contended that his level of impairment warrants a higher rating, and while he is competent to report symptoms and impairments such as pain or difficulty walking (which the Board has considered), he is not competent to make objective medical findings regarding limitation of motion or apply the relevant rating criteria to conclude that his symptoms and impairments constitute “marked” left ankle limitation of motion. Additionally, the Veteran’s ex-wife is competent to report her observations; however, the evidence of record does not indicate that Ms. M.S. is a medical practitioner and therefore not competent to make objective medical findings. Accordingly, the Board affords more weight to the competent, objective medical evidence of record corresponding with the relevant rating criteria than to lay contentions regarding the nature and extent of the Veteran’s left ankle condition. The Board has considered other potentially applicable diagnostic codes and finds that they do not apply for the following reasons. Diagnostic Codes 5270 and 5272, which apply to ankylosis of the ankle, do not apply because left ankle ankylosis has not been demonstrated by objective, competent medical evidence. To the extent that the Veteran argues that either of these Diagnostic Codes applies, although he is competent to report ankle symptoms such as pain, he is not competent to self-diagnosis ankylosis. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (defining ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure). While he has been found to have abnormal and painful range of motion (as discussed above), there is no objective medical evidence showing that his left ankle has ankylosed. Indeed, the above VA examiners affirmatively found no ankle ankylosis upon examination. The other diagnostic codes applicable to the ankle are Diagnostic Code 5273 (malunion of os calcis or astragalus) and 5274 (astragalectomy). The evidence is against any finding that the Veteran had malunion of os calcis, malunion of astragalus, or astragalectomy at any time during the appeal period. In addition, neither the Veteran nor his representative has alleged any of these conditions. The Board therefore finds that a rating under either Diagnostic Code 5273 or 5274 is unwarranted. As to Diagnostic Code 5262, the Veteran is already rated separately for a service connected fibula disability and has not appealed that rating. The Board finds that the preponderance of the evidence does not support that his left ankle condition caused marked limitation of motion. The evidence does support moderately limited motion during the period prior to April 2019, contemplated by the current rating. Therefore, the Veteran is not entitled to a rating in excess of 10 percent prior to April 16, 2019. As of April 2019 Upon review of the evidence since April 2019, the Board finds that the evidence is at least in equipoise that the Veteran’s left ankle condition more nearly approximates the criteria for a 20 percent evaluation. As such, a 20 percent rating, but no higher, is granted effective April 16, 2019. The Veteran underwent several VA examinations in April 2019. In one examination, he stated that he had to walk with his left foot pronated due to balance issues placing strain on his left lower leg fibula area. He described the pain during a flare up as a stabbing pain into his left lower leg above his ankle, rated 8 out of 10 on a pain scale. He had a flare up every day, and the pain lasted 5 to 15 minutes. He also reported pain going from sitting to standing, pain and weakness with prolonged standing and sitting, and pain climbing up stairs. Again, the Veteran had muscle atrophy. His right lower extremity measured 34 centimeters at 10 centimeters below the calf. His left lower extremity measured at 33 centimeters in the same location. A VA examination of the Veteran’s ankles states that he had to be overprotective of his left ankle. Prolonged standing or walking caused severe pain and weakness, as well as with using stairs. During a flare up caused by prolonged standing or walking, the Veteran had to rest it immediately. The Veteran’s right ankle was all within normal limits. However, his left ankle showed abnormal ranges of motion – dorsiflexion limited to 10 degrees and plantar flexion limited to 30 degrees. Pain was exhibited on both range of motions, but also on exam during rest/non-movement. There was also evidence of localized tenderness or pain on palpation, pain with weight bearing and evidence of crepitus. The Veteran was able to perform repetitive testing bilaterally. His right ankle remained within normal limits. There was additional loss of function or range of motion on his left ankle. His dorsiflexion was limited to 5 and his plantar flexion was limited to 15. Pain, fatigue and weakness contributed to the functional loss. Additional contributing factors of disability were disturbance of locomotion and interference with standing. The Veteran had reduced muscle strength on the left, measuring 4 out of 5 on both plantar flexion and dorsiflexion. He also had muscle atrophy of the left lower extremity, which measured 33 centimeters at 10 centimeters below the calf. His right lower extremity measured 34 centimeters in the same location. The Veteran did not have ankylosis. His left ankle was suspected of instability or dislocation, and showed laxity compared to his right on the anterior drawer test and the talar tilt test. The Veteran occasionally used a cane. The functional impact of these symptoms resulted in the Veteran to have a flare up after prolonged walking or standing and he was unable to do any squatting or bending due to left ankle rolling and weakness. The Veteran showed objective evidence of pain on passive range of motion testing and when non-weight bearing. See April 2019 VA ankle examination. An addendum to an April 2019 knee and lower leg examination indicated that the Veteran’s left fibula fracture in March 2005 was at least as likely as not caused by his left ankle disability with atrophy and weakening of the left calf. See October 2020 VA examination addendum opinion. However, under the previous rating criteria, the Board finds that the evidence is at least in equipoise that since April 2019, the Veteran’s symptomatology increased in severity to more nearly approximate the criteria for a 20 percent rating under Diagnostic Code 5271. With repetitive use, the Veteran’s left ankle dorsiflexion was found to be 5 and the plantar flexion was limited to 10 degrees. The Veteran’s range of motion would be considered marked pursuant to the M21-1 provisions in effect prior to the 2021 regulatory amendments. Again, this guidance was based on recommendations from a panel of non-VA specialists who reviewed VA’s rating schedule for musculoskeletal disabilities, and is therefore persuasive guidance for the Board to rely on these provisions. The continued atrophy of his left calf, muscle weakening, pain exhibited on non-movement, and increase in functional impact of his symptoms supports marked limitation of motion during the period beginning April 2019. Such a rating would continue to be warranted under the February 2021 revised rating criteria. Therefore, resolving all reasonable doubt in favor of the Veteran for the period from April 16, 2019, the Board finds that a 20 percent rating, but no higher, is warranted. The Board notes that a 20 percent rating is the highest schedular rating available under Diagnostic Code 5271, and none of the other ankle diagnostic codes apply for the reasons discussed above. REASONS FOR REMAND The Veteran is service-connected for lumbar spine degenerative disc disease, residuals of left ankle sprain with atrophy and weakness, distal left fibula condition, unspecified depressive disorder, and surgical scars associated with his lumbar spine disability. He does not meet the schedular criteria for TDIU. When the threshold criteria for consideration of a schedular TDIU are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. See 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 22 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). The record shows the Regional Office did not refer TDIU to the Director of the Compensation Service for extra-schedular consideration, as it found referral unwarranted. See November 2020 SSOC. The Board disagrees. The Veteran reportedly left school in the 10th grade and obtained a GED after service. He did not repeat any grades. Following his GED, the Veteran went to college for one and a half years and majored in computer science. He did not complete the program. The Veteran worked approximately four jobs after his separation from the military. His longest period in a single job was for 10 years as the manager of a fast food restaurant. The Veteran quit in 2005 because he had to be on his feet constantly. After one year of unemployment, he began receiving Social Security Disability Benefits based, in part, on his lumbar spine condition. SSA determined he could not perform any of his past work. The VA examinations have indicated he has limits on certain physical activities due to pain, weakness, and fatigue from the left ankle/leg and back condition. The statements made in the April 2019 and September 2020 examinations, taken with the SSA records, provide sufficient evidence to refer the case for extraschedular consideration. This matter is REMANDED for the following action: Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service or his/her designee for extraschedular TDIU consideration for any or all of the period beginning February 2011. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Parker N. Reynolds, 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.