Citation Nr: 21020862 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-15 938A DATE: April 8, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right ankle disability prior to April 2, 2019, is denied. Entitlement to a rating in excess of 10 percent for a left ankle disability prior to April 2, 2019, is denied. Entitlement to a 20 percent rating, but not higher, for a right ankle disability as of April 2, 2019, but not earlier, is granted. Entitlement to a 20 percent rating, but not higher, for a left ankle disability as of April 2, 2019, but not earlier, is granted. FINDINGS OF FACT 1. Prior to April 2, 2019, right and left ankle disabilities manifested as arthritis and pain with near normal range of motion and no incapacitating exacerbations. 2. As of April 2, 2019, resolving reasonable doubt in favor of the Veteran, right and left ankle disabilities manifested with marked limited motion when considering flare ups and excess motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right ankle disability prior to April 2, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5262, 5270, 5271. 2. The criteria for entitlement to a rating in excess of 10 percent for a left ankle disability prior to April 2, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5262, 5270, 5271. 3. The criteria for entitlement to a 20 percent rating for a right ankle disability as of April 2, 2019, but not earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5262, 5270, 5271. 4. The criteria for entitlement to a 20 percent rating for a left ankle disability as of April 2, 2019, but not earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5262, 5270, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to November 1991 and from December 1995 to January 2012. In November 2019, the Board remanded this case for additional development. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167 (2010); Dyment v. West, 13 Vet. App. 141 (1990). The Board finds that there has been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings 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. 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 to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran’s favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to increased ratings for right and left ankle osteoarthritis with Achilles tendonitis The Veteran seeks initial ratings in excess of 10 percent for right and left ankle osteoarthritis with Achilles tendonitis. During the April 2017 Board hearing, the Veteran, through the representative, argued that for the period between 2012 and 2016, each ankle warranted a separate 10 percent rating. The Board notes that a September 2019 rating decision increased the initial rating to 10 percent for bilateral osteoarthritis of the ankle with Achilles tendonitis, from February 1, 2012, to June 5, 2016, with separate 10 percent ratings assigned for the right and left ankles as of February 1, 2012, the day after separation from service. The service medical records show that after bilateral ankle injuries, the Veteran complained of bilateral ankle pain and was diagnosed with chronic tendonitis of the Achilles tendons. An August 2010 X-ray found moderate right ankle osteoarthritis. In June 2011, the Veteran was treated for bilateral ankle pain. He reported that he felt somewhat unstable walking down stairs and had to take one step at a time. In July 2011, right ankle anterior drawer sign and minimal to moderate “waver right” was noted. Post-treatment records show ongoing complaints of and treatments for bilateral ankle pain. A January 2012 VA examination diagnosed bilateral arthritis of the ankles and bilateral Achilles tendonitis. The Veteran reported moderate, intermittent bilateral ankle pain which presented after walking or riding in a car. The Veteran reported daily morning flare ups with severe pain which lasted three to five minutes and improved with movement and walking. Objectively, the examiner measured right and left ankle plantar flexion to 45 degrees or greater, with no objective evidence of painful motion, and right and left ankle dorsiflexion to 20 degrees or greater, with no objective evidence of painful motion. There was no additional limitation in range of motion of either ankle following repetitive-use testing. Interference with sitting, standing, and weight-bearing contributed to functional loss after repetitive use. The examiner noted the regular use of shoe inserts, no joint instability, and no ankylosis. A bilateral ankle disability impacted the Veteran’s ability to work as an ROTC instructor by limiting his participation in physical training exercises. During a June 2016 VA examination, the Veteran reported bilateral ankle pain and difficulty walking and standing. The Veteran reported biannual flare ups which caused bilateral ankle pain and resolved after a week of rest and pain medication. Objectively, the examiner measured right and left ankle plantar flexion to 40 degrees and right and left ankle dorsiflexion to 20 degrees. Noted pain on examination did not result in functional loss. There was no additional loss of function or range of motion for either ankle after three repetitions. There was no evidence of pain with weight bearing, crepitus, ankylosis, or instability. During an April 2019 VA examination, the Veteran reported constant bilateral ankle pain and swelling after standing for more than three hours, the use of prescription pain medication for bilateral ankle pain, and instability when using stairs. The Veteran reported that flare ups caused intermittent swelling and pain and reduced range of motion by 50 percent in both ankles. Flare ups occurred three times a month, lasted for two to three days, and required pain medication. The examiner stated that based on the Veteran’s statements it appeared that the Veteran had mild to moderate instability of the ankles. Right and left ankle plantar flexion was measured to 20 degrees and right and left ankle dorsiflexion to 10 degrees. The pain noted on examination did not result in functional loss. There was no additional loss of function or range of motion for either ankle after three repetitions. Joint stability testing for both ankles was negative. There was no evidence of pain with weight bearing, crepitus, or ankylosis. The examiner noted that pain, weakness, and lack of endurance limited functional ability with flare ups. Range of motion during flare ups was not reported. During a November 2019 VA examination, the Veteran reported that the baseline level of bilateral ankle pain was eight out of ten and ten out of ten during flare ups. He reported that flare ups occurred with prolonged walking, standing, uneven terrain, weight bearing, use of stairs, and weather changes. Flare ups lasted one to two days and were worse in the morning. He reported the use of braces and a cane. The examiner measured right ankle plantar flexion to 30 degrees, right ankle dorsiflexion to 5 degrees, left ankle plantar flexion to 40 degrees, and left ankle dorsiflexion to 20 degrees. Range of motion contributed to functional loss and pain. There was evidence of pain with weight bearing. There was no additional loss of function or range of motion for either ankle after three repetitions. Pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over a period of time. Crepitus, ankylosis, and instability were not noted. After a review of the record, a November 2020 VA examiner stated that there was not a marked loss of motion or ankle deformity. The Board finds that the medical evidence which includes VA and non-VA medical records and several VA examinations, taken as a whole, to be thorough, complete and a sufficient bases upon which to reach a decision on the Veteran's claim. Rodriguez-Nieves v. Peake, 22 Vet. App. 295 (2008). The Veteran’s ankle disability is currently rated under Diagnostic Code 5003-5271. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. During the pendency of the appeal, the rating criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The 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.” The Veteran's claim for an increased rating for right and left ankle disabilities was received by VA in November 2011. When a provision of the rating schedule is amended while a claim for an increased rating under that provision is pending, a determination must made as to whether the amended regulation is more favorable to the Veteran. VA may award an increased rating based on a change in the regulation retroactive to, but not earlier than, the effective date of the amended regulation. The prior version of the regulation is for application for the period prior to the amendment. 38 U.S.C. § 5110(g). Therefore, the Board will consider the Veteran's claim under both the old criteria prior to February 7, 2021 and the new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5010 provided that traumatic arthritis be rated under Diagnostic Code 5003. Diagnostic Code 5003 states that degenerative arthritis established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, warrants a 10 percent rating. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations warrants a 20 percent rating. Ratings for arthritis cannot be combined with limitation of motion ratings of the same joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. As of February 7, 2021, traumatic arthritis is rated under Diagnostic Code 5010. Under the amended Diagnostic Code 5010, traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with § 4.25. Diagnostic Code 5271 provides schedular ratings for limited motion of the ankle. Prior to the regulatory change, a 10 percent rating was warranted for moderate limited motion of the ankle. A 20 percent rating was warranted for marked limited motion of the ankle. The terms moderate and marked as used under Diagnostic Code 5271 were not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology was moderate or marked, the Board was required to evaluate all of the evidence to ensure an equitable and just decision. 38 C.F.R. § 4.6. Under the amended criteria for Diagnostic Code 5271, a 10 percent rating is warranted for moderate, less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, limited motion of the ankle. A 20 percent rating is warranted for marked, less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, limited motion of the ankle. Normal range of motion for the ankle is 0 degrees to 20 degrees dorsiflexion and 0 degrees to 45 degrees plantar flexion. 38 C.F.R. § 4.71. Prior to April 2, 2019 The Board finds that prior to April 2, 2019, the evidence of record shows that bilateral ankle disabilities were manifested by pain, arthritis, bilateral plantar flexion limited to 40 degrees at worse, and bilateral dorsiflexion limited to 20 degrees at worse. Diagnostic Code 5271, prior to and after February 7, 2021, and the amended Diagnostic Code 5010, require rating an ankle disability based on limited motion. As the range of motion for both ankles was near normal prior to April 2, 2019, a 0 percent rating is warranted based on limitation of motion. Therefore, the Board finds that Diagnostic Code 5010, in effect prior to February 7, 2021, allows for the most favorable rating of 10 percent for each ankle based on X ray confirmed arthritis and pain causing a noncompensable level of limitation of motion. The Board acknowledges the January 2012 VA examiner’s finding regarding limited functional ability during flare-ups. However, the examiner did not describe the impact in terms of range of motion, and the June 2016 VA examiner did not opine whether flare ups significantly limited functional ability since the examination was not conducted during a flare-up. The Veteran did not report that there was limited motion during flare ups, there was no painful motion during the examinations, there was no loss of range of motion after repetitive use testing, and objective findings showed that despite reports of pain and functional limitation, range of motion for both ankles was near normal. The Board finds that the preponderance of the evidence shows that the disability picture, even considering pain and functional limitation, to include during flare ups, does not more nearly approximate moderate or marked limited motion of the ankles. Ankle instability was noted in July 2011 and the Veteran reported ankle instability during the 2017 Board hearing. However, the Veteran did not report ankle instability during the January 2012 or June 2016 VA examinations. There are no reports or findings of ankle instability noted in the VA and non-VA medical records from 2012 to 2019. Moreover, the 2012 and 2016 VA examiners and a June 2018 doctor, interviewed and examined the Veteran and specifically noted that there was no ankle instability. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995), Madden v. Gober, 125 F.3d 1477 (1997). The Board assigns greater probative value to the medical evidence, as the evidence was based on objective testing and contemporaneous reporting by the Veteran to medical professionals in the process of providing professional care. Less probative value is given to the 2017 statements regarding ankle instability which were made in conjunction with the claim. Cartright v. Derwinski, 2 Vet. App. 24 (1991) (pecuniary interest may affect the credibility of a claimant's testimony). Therefore, the Board finds that prior to April 2, 2019, separate 10 percent ratings under Diagnostic Code 5010, prior to the regulatory change, for each ankle based on arthritis and pain, were warranted. Higher ratings were not warranted because there was no X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Incapacitating exacerbations were not shown. Limitation of motion warranting more than a 10 percent rating was not shown. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of ratings greater than 10 percent for right and left ankle disabilities prior to April 2, 2019. 38 U.S.C. § 5107. As of April 2, 2019 The Board finds that as of April 2, 2019, the evidence shows that right and left ankle disabilities were manifested by pain, moderate to marked limited motion, and instability. In April 2019, bilateral ankle plantar flexion was 20 degrees and bilateral ankle dorsiflexion was 10 degrees. The Veteran reported instability and a 50 percent reduction in range of motion during flare ups. The November 2019 examination was conducted during a flare up and right ankle plantar flexion was 30 degrees, right ankle dorsiflexion was 5 degrees, left ankle plantar flexion was 40 degrees, and left ankle dorsiflexion was 20 degrees. Regarding the right ankle, the Board finds that Diagnostic Code 5271, prior to the regulatory change, is more favorable to the Veteran's claim. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not shown to have the requisite education, experience, and training to opine that flare ups reduced range of motion of the ankles by 50 percent. Smith v. Derwinski, 1 Vet. App. 235 (1991). As there was objective evidence of a reduction in range of motion during a flare up in November 2019, the Board resolves reasonable doubt in favor of the Veteran. Specifically, the Board finds marked limited motion of the right ankle from April 2, 2019. A right ankle disability manifested by marked limited motion warrants a 20 percent rating under the previous rating criteria for Diagnostic Code 5271. Under the current diagnostic criteria less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion is required for a 20 percent rating. Therefore, Diagnostic Code 5271, in effect prior to February 7, 2021, allows for the most favorable disability rating of 20 percent for marked limited motion of the right ankle from April 2, 2019. Regarding the left ankle, the Board finds that the evidence shows mild to moderate instability of the ankle that qualifies as excess motion and resolving reasonable doubt in favor of the Veteran, results in marked limitation of motion as of April 2, 2019, but not earlier, which warrants a 20 percent rating under Diagnostic Code 5271. Under the current criteria, less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion is required for a 10 percent rating. Therefore, the Board finds that the previous criteria supporting a 20 percent rating for a left ankle disability as of April 2, 2019, based on limitation of motion are more beneficial to the Veteran. The Board notes that the Veteran reported a reduction in range of motion during flare ups. The November 2019 examination showed near normal left ankle range of motion during a flare up, but the Board has resolved reasonable doubt in favor of the Veteran. The new regulation requires consideration of Diagnostic Code 5270. The Board notes that ankylosis is the complete immobility of a joint in a fixed position, either favorable or unfavorable. Dinsay v. Brown, 9 Vet. App. 79 (1996). There is no evidence of complete immobility and no medical professional has diagnosed ankylosis of the ankles. There is no evidence of symptoms, findings, or functional impairment comparable or analogous to ankylosis. There is no evidence of ankylosis of the ankle, subastragalar, or tarsal joint; malunion of os calcis or astragalus; or an astragalectomy. Therefore, a separate or higher rating is not warranted for those disabilities as they are not shown by the evidence of record. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that 20 percent ratings, but not higher, for right and left ankle limitation of motion are warranted as of April 2, 2019, but not earlier. The Board finds that the preponderance of the evidence is against the assignment of any higher or separate ratings. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., 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.