Citation Nr: 21014246 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-14 603 DATE: March 11, 2021 ORDER Entitlement to a 10 percent rating for minimal degenerative disease of the right ankle is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s minimal degenerative disease of the right ankle manifested by, at most, moderate limitation of motion, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups and X-ray evidence of arthritis without ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy. CONCLUSION OF LAW The criteria for entitlement to a 10 percent rating for minimal degenerative joint disease of the right ankle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Codes 5010, 5271 (1997, 2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1985 to May 31, 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 6, 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. By way of background, the Veteran and his representative previously testified before a Veterans Law Judge on May 23, 2018. See Hearing Tr. (May 23, 2018). A transcript of this hearing was produced and has been associated with the Veteran’s claims file. The Veteran’s claim was remanded in a September 24, 2018 Board decision, which is final as to all issues therein except for this one that remains on appeal. See BVA Decision (Sept. 24, 2018). After certain development was undertaken by the Agency of Original Jurisdiction, the Veteran was issued a Supplemental Statement of the Case (SSOC) on September 28, 2020. See SSOC (Sept. 28, 2020). Subsequent to all of the above, the Veteran was informed by correspondence that the Veterans Law Judge who presided over the May 23, 2018 hearing has retired and is no longer employed at the Board. See BVA Letter ( Jan. 13, 2021 ). In this letter, the Veteran was informed of his appellate right to testify at a new hearing before the new presiding Veterans Law Judge. Id.; see 38 U.S.C. § 7107(c); 38 C.F.R. § 19.3(b). This letter indicated that if no response from the Veteran was received within 30 days, then the Board would assume that the Veteran did not desire another hearing. The 30-day window has elapsed, and the Veteran never requested a new hearing before a new Veterans Law Judge, even though he was informed of this right. The Board accordingly reasserts jurisdiction. 1. Entitlement to a 10 percent rating for minimal degenerative joint disease of the right ankle effective February 7, 2021, but no higher and earlier is granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). VA amended the criteria for rating musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ) on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. 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 versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. By way of background, the Veteran’s right ankle arthritis has been rated as noncompensable effective June 1, 2005 under Diagnostic Code 5010, 38 C.F.R. § 4.71a. This disorder is attributed to an in-service racquetball injury, while the Veteran also suffered a non-service-connected fracture of the right ankle after discharge. See VA Exam (Nov. 1, 2019). The Veteran generally contends that a higher rating is warranted for his right ankle disorder. Specific argument in support of this appeal has not been presented. A 10 percent rating is awarded for “moderate” limitation of motion; a 20 percent for “marked.” 38 C.F.R. § 4.71a, Diagnostic Code 5271 (1997). The normal range of motion in the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II. Notably, the terms “moderate” and “marked” were previously not defined under VA regulations. Those terms also did not appear to have a generally accepted medical definition. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “moderate” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under the revised diagnostic code, marked limitation of ankle motion constitutes less than five degrees of dorsiflexion or less than 10 degrees of plantar flexion while moderate limitation of ankle motion constitutes less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (effective Feb. 7, 2021). Also included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate ankle disabilities based on other manifestations, including Diagnostic Code 5270 (ankylosis of the ankle), Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of the os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy). None of the above appear to apply to the Veteran. Diagnostic Code 5003 directed a rating as traumatic arthritis. In Diagnostic Code 5003, a 10 percent rating was awarded with X-ray evidence of involvement of two or more major joints or two or more minor joint groups; a 20 percent rating was awarded when the disorder manifests in occasional incapacitating episodes. Under the amended diagnostic code, post-traumatic arthritis is to be rated as limitation of motion, dislocation or other specified instability under the affected joint—namely, in this case, Diagnostic Code 5271 as discussed above. See also 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2020). The Veteran’s claim for a compensable rating for his right ankle disorder was remanded in September 2018. The Veteran then submitted to updated VA examinations in November 2019 and September 2020. See VA Exams (Nov. 1, 2019; Sept. 25, 2020). The Board concludes that the examinations are compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016); therefore, the Veteran has been afforded substantial compliance with previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2019 VA examination confirmed that the Veteran’s left ankle (i.e.: the opposite joint) is undamaged, and that there was no evidence of pain on passive range of motion testing, or else in non-weight bearing. See VA Exam (Nov. 1, 2019), at Pages 10-11. See also Correia, supra. The Board notes that the examiner appears to have omitted estimates of loss of range of motion due to flare-ups, see Sharp, supra. The Veteran was afforded another examination in September 2020 that satisfies Sharp, which will be discussed later. The Board accepts the examiner’s conclusion that his right ankle residuals are more likely attributable to the non-service-connected fracture, instead of his minimal racquetball injury. Specifically, the Board accepts the examiner’s conclusion that the Veteran’s limited range of motion is from the Veteran’s former hardware that was implanted from the fracture surgery, but since removed. See generally VA Exam (Nov. 1, 2019), at Pages 1-2; 7-12. The Veteran then submitted to another VA examination of his ankle in September 2020. At this examination, the Veteran continued to endorse flare-ups, and the examiner estimated that flare-ups of the right ankle could limit dorsiflexion of the right ankle to approximately 10 degrees. See VA Exam ( Sept. 25, 2020 ), at Question No. 3d. Meanwhile, the examiner indicated that the right ankle exhibited pain in passive and nonweight-bearing range of motion, but no range of motion was apparent. See id. at Question No. 14. The Board concludes that these findings are adequate as to Sharp and Correia, and affords the Veteran substantial compliance with the remand directives, see Stegall, supra. Throughout the period on appeal, the Veteran’s minimal degenerative joint disease of the right ankle manifested as dorsiflexion that was limited to 10 degrees and plantar flexion that was limited to 25 degrees, both at worst, in the September 2020 VA examination in contemplation of pain and reported flare-ups. The Board notes that the Veteran did sustain a second right ankle injury after service. However, a September 2020 VA examiner differentiation of symptoms between the in-service diagnosis and the post-service diagnosis was not possible without resorting to speculation. In addition, X-rays revealed objective evidence of arthritis and the Veteran reported painful motion. Therefore, a rating of 10 percent is warranted throughout the appeal period. A higher rating is not warranted as the record does not establish marked limitation of motion in the right ankle. As noted above, right ankle manifested as dorsiflexion that was limited to 10 degrees and plantar flexion that was limited to 25 degrees, both at worst, in the September 2020 VA examination in contemplation of pain and reported flare-ups. Accordingly, the Board finds that the Veteran’s minimal degenerative joint disease of the right ankle manifested, at most, in a moderate limitation of range of motion even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity or etiology of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity and etiology of his disability. The Board has also considered whether a staged rating under Fenderson, supra, is appropriate for the Veteran’s minimal degenerative joint disease of the right ankle; however, the Board concludes that none such are appropriate. Further, neither the Veteran nor his attorney have raised any other issues nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The Veteran’s current employment status is not known. However, the Veteran has not alleged, and the record does not suggest, that he is not able to obtain and maintain employment as a result of his right ankle minimal degenerative joint disease. The Board accordingly finds that a claim for TDIU is not raised by the rating issue on appeal and no further action pursuant to Rice is necessary. (Continued on the next page)   Based on the foregoing, the Board finds that a rating of 10 percent for the Veteran’s minimal degenerative joint disease of the right ankle is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.