Citation Nr: 21021242 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-25 850 DATE: April 12, 2021 ORDER Entitlement to an initial disability rating of 20 percent, but not higher, for left ankle sprain with residuals of chronic ankle instability is granted. FINDING OF FACT The Veteran's service-connected left ankle disability has been manifested by marked limitation of motion. CONCLUSION OF LAW The criteria for entitlement to an initial 20 percent rating, but not higher, for left ankle sprain with residuals of chronic ankle instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1979 to January 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, that assigned an increased rating of 10 percent for the Veteran’s left ankle disorder effective from May 10, 2013. The Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2015. A transcript of the hearing is of record. The Board remanded this matter in August 2018 for additional development. 1. Entitlement to an initial disability rating of 20 percent, but not higher, for left ankle sprain with residuals of chronic ankle instability is granted. a. Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 claimant. 38 C.F.R. § 4.3. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). b. Analysis VA’s schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. The Veteran's service-connected left ankle sprain is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under the prior version of Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion of the ankle; a 20 percent rating is assigned for marked limitation of motion of the ankle. Normal ranges of motion (ROM) of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Terms such as "mild," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence so that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The revised DC 5271 provides that a 10 percent rating is assigned for moderate limitation of motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion); a 20 percent rating is assigned for marked limitation of motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Turning to the relevant evidence of record, the Veteran was afforded a VA examination in September 2013. He complained of persistent instability, pain, and some popping in the left ankle. He denied any flare-ups. Plantar flexion of the left ankle was to 40 degrees without pain, and dorsiflexion was to 0 degrees without pain. On repetitive-use testing with three repetitions, range of motion of the left ankle was unchanged. The examiner stated that the Veteran had functional loss after repetitive use, described as weakened movement, disturbance of locomotion, and interference with sitting, standing and weight-bearing. There was pain to palpation and laxity of the left ankle. The Veteran constantly had to wear high boots for instability. Muscle strength was normal. On VA examination in June 2015, the Veteran complained of pain, persistent instability, some popping, and near constant swelling in the left ankle, as well as cramping at night. He reported increased pain and instability with increased walking and standing. He stated that he would get sharp, stabbing pain upon driving lasting a few seconds. His pain level 2-3/10 with Methadone he takes for his back, but could get up to 8-9/10 at night. He endorsed flare-ups. The Veteran reported that he would roll his ankle on average every 3 months and have to use crutches and hobble around the house for three to four days. He reported pain with increased standing and walking. Plantar flexion of the left ankle was to 20 degrees with pain, and dorsiflexion was to 15 degrees with pain. On repetitive-use testing with three repetitions, range of motion of the left ankle was unchanged. There was laxity of the left ankle. The Veteran reported using a left ankle brace, crutches, and cane for left ankle pain and stability. Muscle strength was normal. On VA examination in November 2017, the Veteran complained of tenderness at the front of the ankle, swelling, rolling intermittently despite wearing brace, but most of the time it occurs upon walking on uneven ground but has also happened on flat ground. He reported limited range of motion and had difficulty walking inclines as a result. He reported intermittent pain in the ankle, worse at night. His pain level was 4-6/10, but could get up to 10/10 at night when it starts throbbing and there are sharp pains. There was also evidence of weight-bearing pain and localized tenderness on palpation of the joint or associated soft tissue. Plantar flexion of the left ankle was to 20 degrees with pain, and dorsiflexion was to 10 degrees with pain. On repetitive-use testing with three repetitions, range of motion of the left ankle was unchanged. There was laxity of the left ankle. Muscle strength was normal. The Veteran reported using a cane or walking stick 90 percent of time - not inside the house. He used bilateral ankle braces every day but not in the evening, and a cane for his left ankle condition. The Veteran was examined by the VA once again in October 2019. His complaints were consistent with those noted above. He denied any flare-ups. Left ankle dorsiflexion was to 10 degrees and plantar flexion was to 25 degrees. The ROM itself did not contribute to functional loss; however, there was evidence of weight-bearing pain and localized tenderness on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions, although there was additional loss of function or ROM including pain and weakness. His ROM after three repetitions for the dorsiflexion was 10 degrees and the plantar flexion was 20 degrees. The examiner noted that pain and weakness significantly limited functional ability with repeated use over a period of time. The examiner described this in terms of range of motion as dorsiflexion to 10 degrees and plantar flexion to 20 degrees. There was laxity of the left ankle. Muscle strength was normal. The examiner stated that the Veteran would have restrictions to prolonged standing over 30 minutes and walking across uneven terrain, and would have great pain and decreased ROM in ascending and descending stairs. As noted above, normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. Under the prior version of Diagnostic Code 5271, moderate limitation of motion of the ankle and marked limitation of motion of the ankle were not defined. Here, at worst, the Veteran exhibited plantar flexion of the left ankle to 20 degrees, which is less than half of the normal 45 degrees. Dorsiflexion of the ankle has also been limited to 10 degrees, which is half of the normal 20 degrees. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that his left ankle disorder approximates the criteria for a 20 percent rating, i.e., marked limitation of motion of the ankle, under DC 5271. This is the maximum rating available under DC 5271. As the Veteran’s left ankle has not been manifested by ankylosis, the criteria for a 30 or 40 percent rating under Diagnostic Code 5270 have not been met or more nearly approximated. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gonzalez, Damian 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.