Citation Nr: 21013669 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-46 746 DATE: March 10, 2021 ORDER Entitlement to a disability rating of 20 percent for a right ankle condition is granted. FINDING OF FACT The Veteran’s right ankle condition manifests as marked limitation of motion during flare-ups. CONCLUSION OF LAW The criteria for a disability rating of 20 percent for a right ankle condition have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, 4.71a (2020), Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1979 to September 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of February 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in April 2014. The RO issued a statement of the case (SOC) in November 2015 and the Veteran’s timely appeal to the Board followed in December 2015. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned Veterans Law Judge (VLJ) was scheduled. The Board subsequently remanded the Veteran’s case in October 2019, finding that a previous VA examination was inadequate to support adjudication of the Veteran’s claim. See October 2019 Board Decision at 5-7. The record reflects that an additional VA examination was conducted in March 2020 and the RO issued a contemporaneous supplemental statement of the case (SSOC). Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on 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 apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). In determining if a higher rating is warranted on this basis, pain alone does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The record reflects that the Veteran’s right ankle condition is rated as noncompensable from October 1999 and as 10 percent disabling from October 2001 under Diagnostic Code (DC) 5271. See March 2015 Rating Codesheet at 1. The Board notes that the rating criteria applicable to this condition have been revised during the pendency of the Veteran’s appeal. Prior to February 7, 2021, functional impairment of the right ankle was rated as 10 percent disabling where there was “moderate” limitation of motion and as 20 percent disabling where such limitation was “marked.” See 38 C.F.R. § 4.71a (2020), Diagnostic Code (DC) 5271. From February 7, 2021, these terms were further defined to include degree measurements. See 38 C.F.R. § 4.71a, DC 5271 (defining “moderate” limitation as “less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion”); see also id. (defining “marked” limitation as “less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion”). Because the Veteran’s claim predates the date this regulation was amended, and because the amendment contains no indicia of retroactivity, the Board must apply both versions of the regulation to the applicable portions of the Veteran’s claim. See Karnas v. Derwinski, 1 Vet. App. 308 (1991) (providing rule that Veteran will benefit from whichever version of regulation is more favorable); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (partially overruling Karnas and requiring that retroactive application of new regulation be based on express language to that effect); see also 85 FR 76453 (amendment discussing comments, establishing effective date, containing no indicia of retroactivity, and not claiming applicability only to post-dating claims). The Board has therefore considered both versions of the applicable rating criteria in reviewing the Veteran’s claim. In its October 2019 remand, the Board had previously found that a December 2014 VA examination report was inadequate to support adjudication of the Veteran’s claim. See October 2019 Board Decision at 5-6. In reaching this conclusion, the Board specifically noted that this VA examination had not provided estimates as to the degree of additional functional impairment, if any, resulting from flare-ups of the Veteran’s right ankle condition. See December 2014 VA Examination Report at 9; see also October 2019 Board Decision at 6; see also March 2020 VA Form 21-4138 at 2 (providing Veteran’s assertion that during flare-ups, “which usually start in about October and end when it gets warmer… walking anywhere on [the right ankle] is very painful… there is no way I can walk around the store [without assistance]”); see also Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (providing that “VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from reliable sources, including the lay statements of veterans”). However, the March 2020 VA examiner also did not provide such flare-up estimates. See March 2020 VA Examination Report at 4-5 (asserting that “there is no conceptual or empirical basis for making such a determination without directly observing function under [flare-up] conditions”). Because multiple VA examiners have not substantially complied with this requirement, the Board concludes that further remand for an adequate VA examination on this point would be futile. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). Instead, the Board finds that it is at least as likely as not that the Veteran’s right ankle condition manifests as marked limitation of motion during flare-ups based on the Veteran’s credible assertions, which are consistent with other medical evidence of record. See 38 U.S.C. § 5107; see also March 2013 VA Examination Report at 5 (noting that “[flare-ups] are precipitated by walking on uneven terrain, and stepping on a stone or quick turning on uneven terrain[,]” and that “[the Veteran] has had 2 falls this past year as a result of the ankle giving out”); see also March 2013 Correspondence at 1 (asserting that “when I twist [the right ankle] I’m down with limited movement for at least a day or two and experience pain when walking for 4 or 5 days… I will twist my ankle walking across a parking lot and stepping on a rock as little as a dime in circumference”); see also March 2020 VA Form 21-4138 at 2. Finally, the Board notes that the Veteran has expressly sought a 20 percent disability rating for his right ankle condition. See April 2014 NOD at 1; see also August 2016 VA Form 646 at 2. Additionally, a rating in excess of 20 percent is not assigned for functional impairment of the ankle unless there is ankylosis, which has not been asserted by the Veteran and is not otherwise supported by the evidence of record. See 38 C.F.R. §§ 4.71a (2020), 4.71a, DC 5270; see also March 2013 VA Examination Report at 9 (finding no ankylosis); see also December 2014 VA Examination Report at 10; see also March 2020 VA Examination Report at 6. Because the Board concludes that it is at least as likely as not that the Veteran’s right ankle condition manifests as marked limitation of motion during flare-ups, a disability rating of 20 percent for that condition is therefore warranted. 38 C.F.R. §§ 4.71a (2020), 4.71a, DC 5271. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.