Citation Nr: 21013729 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-33 927 DATE: March 10, 2021 ORDER Entitlement to a rating in excess of 10 percent for chronic peroneus brevis tendinopathy of the left ankle (left ankle disability), either prior to or since June 29, 2012, is denied. Entitlement to a rating in excess of 10 percent for chronic peroneus brevis tendinopathy of the right ankle (right ankle disability), either prior to or since June 29, 2012, is denied. Entitlement to a 10 percent disability rating based on multiple, noncompensable, service-connected disabilities prior to June 29, 2012, is summarily dismissed. FINDINGS OF FACT 1. Even when considering his pain, at most, the Veteran has had moderate limitation of motion of his left and right ankles during the entire review period, meaning since April 8, 2009. 2. He has had compensable ratings – meaning ratings higher than 0 percent – for his left and right ankle disabilities effectively since April 8, 2009, so prior to June 29, 2012.   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to ratings greater than 10 percent for the left and right ankle disabilities – either prior to or since June 29, 2012 (so at no point since April 8, 2009). 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 claim for a 10 percent rating prior to June 29, 2012 based on multiple, noncompensable, service-connected disabilities does not have legal merit. 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to July 1984. These claims most recently were before the Board of Veterans' Appeals (Board) in November 2018. At the time, the Veteran, in part, was trying to establish his entitlement to initial compensable ratings for his left and right ankle disabilities prior to June 29, 2012, and to ratings higher than 10 percent for these disabilities since. He also was trying to establish his entitlement to a 10 percent rating on the premise of having multiple, noncompensable, service-connected disabilities. As well, he a claim for service connection for right hip disability – including as secondary to his already service-connected left and right ankle disabilities. The Board remanded all these claims back to the local Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) for further development and consideration. On remand, the RO (AOJ) partially granted the claims for higher ratings for the left and right ankle disabilities by increasing the initial ratings for these disabilities from 0 to 10 percent retroactively effective as of April 8, 2009, in other words, so as of an earlier effective date. However, ratings higher than 10 percent continued to be denied, both prior to and since June 29, 2012. The Veteran since has continued to appeal for even higher ratings for his left and right ankle disabilities. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating and for all times periods at issue, does not abrogate a pending appeal). So, these claims now concern whether he has been entitled to ratings higher than 10 percent for these left and right ankle disabilities since April 8, 2009. And, as also will be discussed, because he now has compensable ratings (i.e., 10 percent ratings) for these left and right ankle disabilities prior to June 29, 2012, his claim for a 10 percent rating premised on the notion of having multiple, noncompensable, service-connected disabilities prior to June 29, 2012 no longer has any legal merit and, thus, is being summarily dismissed since now moot. Also, on remand, service connection was granted for his right hip disability, including for his consequent total right hip replacement (arthroplasty) and other residuals (limited flexion and the surgical scar). If he disagrees with the ratings and/or effective dates assigned for these now service-connected disabilities, he must separately appeal these “downstream” issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). There is just one other preliminary point also worth mentioning. In October 2020, the Veteran filed an incomplete VA Form 20-0995, Supplemental Claim Application, citing his VA ankle examinations as the evidence relevant to his claims. The AOJ duly notified him that he would need to refile his claim with a completed application later that same month, but there is no indication he did because no further application is on file. The VA Form 20-0995 represents one of the appeal formats available under the Appeals Modernization Act (AMA). The AMA created a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. However, these claims are before the Board under the prior, “legacy” appeal process. Moreover, a Supplemental Claim is one requesting review of a claim at the AOJ level; filing this form does not result in a review by the Board. 38 C.F.R. § 19.2(d); 38 C.F.R. § 3.2400. Thus, as this appeal was properly certified to the Board under the legacy system, this decision is being written in accordance with that prior review system, and not under the new AMA framework. Should the Veteran wish to pursue further appeals, information for how to proceed is explained at the end of this decision. 1. Entitlement to a rating in excess of 10 percent for chronic peroneus brevis tendinopathy of the left ankle 2. Entitlement to a rating in excess of 10 percent for chronic peroneus brevis tendinopathy of the right ankle The Veteran maintains that his bilateral (meaning left and right) ankle disabilities warrant ratings even higher than the 10 percent because ratings at this level do not adequately compensate him for the extent of his symptoms and consequent functional impairment. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's left and right ankle disabilities are currently evaluated as 10-percent disabling under 38 C.F.R. § 4.71a, DC 5024-5271. Hyphenated DCs are used when a rating for a disability under one DC is based upon rating of the residuals of that disability under another DC. 38 C.F.R. § 4.27. Here, DC 5024 governs tenosynovitis and mandates that it will be rated based on limitation of motion of the affected parts – which, here, involves limited movement of the ankle as determined by DC 5271. Under DC 5271, a 10 percent rating is warranted for moderate limitation of motion of the ankle, whereas a 20 percent rating requires marked limitation of motion. Normal ankle motion is from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. These descriptive words "moderate" and "marked" were not defined in the VA Rating Schedule at time of the earlier rating of these disabilities. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. Effective February 7, 2021, changes to DC 5271 now define moderate limitation as motion with less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and marked limitation as motion with less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior version of the applicable regulation to the period on or after the effective date of the new regulation – if the prior version was in effect during the pendency of the appeal. 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 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); 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). Further, § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." See Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Turning now to the relevant medical and other evidence, in April 2014, the Veteran filed a personal statement attesting to constant pain in his ankles, limiting his ability to move and resulting in use of a cane to stand and walk. He also stated his ankle pain caused secondary pains in his hips and feet. But, as already mentioned, service connection since has been granted for his right hip disability on the premise it is secondary to his service-connected left and right ankle disabilities, and he is being compensated separately for his right hip disability and residuals. At a December 2015 VA ankle examination, the Veteran’s ankles had pain on movement but normal range of motion, with painful motion beginning at 30 degrees of plantar flexion and at 10 degrees dorsiflexion. There was no change in motion on repetition, but the examiner noted increased functional loss due to pain, fatiguability, locomotion disturbance, and interference with sitting, standing, and weight-bearing. The Veteran used a cane while walking to mitigate his symptoms. He denied flare-ups. The Veteran filed more personal statements in January and July 2017, and in April 2018, further attesting to difficulties walking and standing due to ankle pain, particularly owing to weakness in his left ankle. During the VA examination he since had in August 2018, the Veteran’s right ankle had normal range of motion, without pain on movement or decreased functionality on repetition. His left ankle range of motion was to 35 degrees on plantar flexion, and to 10 degrees dorsiflexion, with pain causing functional loss. The examiner found increased functional loss on repetition due to pain and incoordination, with plantar flexion decreased to 30 degrees. The Veteran denied flare-ups. During his even more recent December 2019 VA examination, only the Veteran’s right ankle showed pain on movement, and it caused functional loss. Both ankles had normal range of motion. There was no change in motion on repetition, but the examiner observed increased functional loss due to pain and lack of endurance. Additionally, the examiner found weakened movement and significant discomfort and limitations of the ankles, bilaterally, after prolonged use, as additional factors contributing to the disabilities. The Veteran uses a cane while walking to mitigate his symptoms. He continued to deny flare-ups. The Veteran submitted yet another personal statement in May 2020, albeit associated with another claim, but again attesting to daily pain and instability caused by his bilateral ankle disabilities.   After considering this evidence and all other evidence relevant to these claims, the Board finds that the preponderance of this evidence is against assignment of ratings greater than 10 percent for the Veteran's left and right ankle disabilities at any time since April 8, 2009. The Board is mindful of his lay reports of symptoms and that there was functional loss due to pain, especially with repetitive use over time, and fatiguability. However, even considering his lay reports of symptoms and consequent functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating markedly limited motion or limitation so distinctive or emphasized that it would approximate this required level of impairment. His examinations objectively support his lay statements regarding pain and functional loss. However, his ankle range of motion measurements are consistently commensurate with what amounts to moderate limitation of motion of his ankles rather than marked limitation of motion. Two of his three examinations showed full range of motion, without limitation, and where limitation was observed, it was within 10 to 15 degrees of normal. Even considering the change to DC 5271, which clarifies the definition of moderate, the Veteran’s range of motion on each VA examination is consistent with a 10 percent rating for motion limited to less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, but not less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See DC 5271, effective February 7, 2021. As the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has explained, although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. To constitute functional loss, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance. Mitchell, 24 Vet. App. at 43 (2011). Functional loss may include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than normal, weakened movement, premature or excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell, supra, and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Consider, as well, however, that the Court went on to explain in Mitchell that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (i.e., noncompensable) under the applicable DC. Although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Id. Further, a separate rating is not required for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). As such, the Veteran already has the maximum permissible ratings under these specific circumstances and given his current disability symptoms and consequent impairment. Finally, the Board has considered whether any other DCs relating to disabilities of the ankle would provide for higher disability ratings. However, the evidence does not reflect that the symptoms would warrant higher ratings under a different DC. See 38 C.F.R. § 4.71a, DCs 5270-71, 5273-74. Significantly, the December 2019 VA examiner determined there was no ankylosis, malunion, or astragalectomy. In conclusion, then, the Board finds that the preponderance of the evidence is against the Veteran's appeal for ratings greater than 10 percent for his left and right ankle disabilities. In denying any higher ratings, 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. 3. Entitlement to a 10 percent disability rating based upon multiple, noncompensable, service-connected disabilities As already explained, the Veteran’s left and right ankle disabilities initially were awarded “staged” ratings in a December 2012 rating decision – namely, a 0 percent (noncompensable) initial rating effective April 8, 2009, the date of his initial claim, and then 10 percent ratings as of June 29, 2012. Entitlement to a 10 percent disability rating based on multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324 arose for the first time in that rating decision. Notably, he has never filed a claim for this entitlement and this claim is now moot inasmuch as, on remand, the initial ratings for his left and right ankle disabilities were increased from 0 percent (i.e., noncompensable) to 10 percent as of April 8, 2009. Thus, he no longer has noncompensable ratings for these service-connected disabilities prior to June 29, 2012, instead, he now has 10 percent initial ratings for these service-connected disabilities, meaning compensable ratings. Accordingly, this § 3.324 claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.