Citation Nr: 21021712 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-28 598 DATE: April 13, 2021 ORDER An increased disability rating in excess of 40 percent for arthritis and osteochondritis dissecans, left ankle, postoperative (exclusive of the period from September 6, 2018, to November 30, 2018, during which time a temporary total rating was assigned under 38 C.F.R. § 4.30), is denied.   FINDING OF FACT For the entire appeal period, exclusive of the period where a temporary total rating has been assigned, the Veteran was in receipt of the maximum schedular rating for his arthritis and osteochondritis dissecans, left ankle, postoperative (hereinafter “left ankle disability”), and such disability did not result in symptomatology not contemplated by the currently assigned rating. CONCLUSION OF LAW Exclusive of the period where a temporary total rating has been assigned, the criteria for a rating in excess of 40 percent for left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5299-5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to July 1980 and February 1982 to September 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2017 by a Department of Veterans Affairs (VA) Regional Office. In February 2020, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the record. During the pendency of the appeal, an October 2018 rating decision awarded a temporary total rating from September 6, 2018, to November 30, 2018. Such constitutes a full grant of the benefits sought for that period and the Board has characterized the issue on appeal accordingly. In March 2020, the Board remanded the case for additional development; it now returns for further appellate review. Entitlement to a rating in excess of 40 percent prior to September 6, 2018, and as of December 1, 2018, exclusive of the period where a temporary total rating has been assigned, for left ankle disability. The Veteran is seeking an increased disability rating or his left ankle disability. The appeal period before the Board begins on January 3, 2017, the date VA received the Veteran’s claim for an increased rating (plus consideration of the one-year look-back period). Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). A. Applicable Law Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. For the entire appeal period, exclusive of the period where a temporary total rating has been assigned, the Veteran’s service-connected left ankle disability is evaluated as 40 percent disabling pursuant to 38 C.F.R. § 4.71A, Diagnostic Code 5299-5262. In this regard, the assignment of Diagnostic Code 5299 indicates that the Veteran’s left ankle disability is not listed in the Rating Schedule and, thus, is rated by analogy to Diagnostic Code 5262. The applicable rating schedule is as follows: 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 Also applicable is the rating schedule for the ankle: THE ANKLE Rating 5270 Ankle, ankylosis of: In plantar flexion at more than 40°, or in dorsiflexion at more than 10° or with abduction, adduction, inversion or eversion deformity 40 In plantar flexion, between 30° and 40°, or in dorsiflexion, between 0° and 10° 30 In plantar flexion, less than 30° 20 5271 Ankle, limited motion of: Marked 20 Moderate 10 5272 Subastragalar or tarsal joint, ankylosis of: In poor weight-bearing position 20 In good weight-bearing position 10 5273 Os calcis or astragalus, malunion of: Marked deformity 20 Moderate deformity 10 5274 Astragalectomy 20 As of February 7, 2021, VA has amended the relevant Rating Schedule and, in particular, the criteria under Diagnostic Codes 5262 and 5271. 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: Evaluate under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Medial tibial stress syndrome (MTSS), or shin splints: Requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities 30 Requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity 20 Requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities 10 Treatment less than 12 consecutive months, one or both lower extremities 0 5271 Ankle, limited motion of: Marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) 20 Moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) 10 The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). B. Discussion In this case, a rating greater than 40 percent is not assignable. There are no applicable diagnostic codes applicable to the ankle that provide for a rating greater than 40 percent. Moreover, the Veteran’s service-connected disability does not manifest with distinct manifestations that can be separately compensated. Hence, assignment of separate ratings would be pyramiding, which is not permissible. See Esteban, 6 Vet. App. at 261. Consequently, the Veteran has been in receipt of the maximum schedular rating for his left ankle disability for the entire appeal period, exclusive of the period where a temporary total rating has been assigned. Otherwise, referral for extraschedular consideration is not indicated as the evidence does not show symptomatology that is not contemplated by the rating criteria. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. A non-exhaustive list of factors for determining whether symptomatology is exceptional under § 3.321(b)(1) includes: 1. Extraschedular is only warranted when the conventional rating tools prove inadequate to evaluate a veteran’s symptomatology due to its nature or severity. A symptom cannot be deemed exceptional where it is capable of evaluation by conventional rating means. Extraschedular consideration is appropriate only after the agency has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. 2. Functional impairments [symptoms] serve as the operative focus of Thun’s first step. Functional effects as relevant to Thun’s second step. a. Functional impairments refers to a condition that impairs normal functioning and reduces earning capacity b. Functional effects pertains to an examiner’s obligation to describe a veteran’s disability picture in full 3. Accordingly, where alleged conditions are not compensable in the first instance under the rating schedule due to the lack a formal diagnosis, they do not warrant extraschedular consideration as this would amount to a backdoor means to obtaining compensation for conditions the rating schedule intends to exclude. Whether a symptom or impairment is compensable under the rating schedule is a different inquiry than whether a service-connected condition is adequately compensated. 4. Extraschedular consideration is not warranted for downstream effects that clearly lack a requisite and legally recognized nexus to service or to a service-connected disability. Extraschedular ratings are only meant to compensate only service-connected disabilities. 5. The Board need only discuss possible schedular alternatives for rating a disability if they are raised by the claimant or reasonably raised by the record. The Board need not attempt to uncover matters only hinted at by the record or raise and reject all possible theories of entitlement. Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Vet. App. Dec. 30, 2020) (internal quotations and citations omitted). Here, in December 2017, the Veteran reported flare-ups of severe pain and resulting functional loss of an inability to hike, run, and play sports. Physical examination revealed pain with dorsiflexion, plantar flexion, and weight bearing, as well as diffuse medial malleolus discomfort to palpation without crepitus. Ambulation was painful due to left ankle pain and decreased range of motion. At the February 2020 hearing, the Veteran testified that he experienced constant pain, severe swelling several times per year, and a significant decrease in range of motion in connection with his service-connected left ankle disability. He stated that such pain made shifting gears in his car increasingly more difficult and that he had lost his previous job as an ultrasound technician in 2013 due to his left ankle symptomatology. On VA examination in September 2020, the Veteran reported continued pain, stiffness, and decreased range of motion, as well as flare-ups during which he felt as though his ankle “is going to explode”. The latter forced the Veteran to sit in his recliner with ice and prevented any further activity. The VA examiner found the Veteran’s decreased range of motion resulted in difficulties with walking, stairs, and ladders, and the functional impact of his left ankle disability on his employability would include difficulties with prolonged standing, walking, pushing, lifting, driving, and climbing ladders. The Veteran has also been shown to wear a brace on the left ankle, use a cane, and was fitted for special shoes by VA. See 4/18/2019 VA Prosthetics; 10/8/2019 VA Primary Care; 1/27/2020 VA Primary Care; 8/14/2020 VA Emergency Dept Triage Note. In this case, the reported symptomatology of pain, swelling, stiffness, and instability of station, including his difficulty with walking, climbing stairs, driving, needing a cane and brace, plus falling are contemplated by the rating criteria. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as instability of station, weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, weight bearing, plus use of assistive devices. 38 C.F.R. §§ 4.45, 4.59; Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Additionally, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. Therefore, the record does not reflect additional symptomatology that is not contemplated by the rating criteria. Furthermore, the Veteran stated that he has not lost any work time due to his left ankle disability despite such increased limitations. Finally, the Veteran has claimed service connection for other physical and psychiatric conditions secondary to the left ankle disability. Those matters are not within the scope of the instant appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Consequently, the Board finds referral for consideration of an extraschedular rating is not warranted in the instant case, and a rating in excess of 40 percent for the Veteran’s left ankle disability is denied. In sum, the preponderance of the evidence is against a rating higher than 40 percent for the left ankle disability. As such, the benefit-of-the doubt doctrine is not applicable, and the appeal is denied. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.