Citation Nr: 21021822 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-13 677 DATE: April 14, 2021 ORDER An initial rating of 20 percent for the left ankle disability (status post open reduction and internal fixation of left ankle fracture with osteoarthritis), prior to October 29, 2020, is granted. An initial rating for the left ankle disability in excess of 20 percent, to include since October 29, 2020, is denied. FINDING OF FACT Throughout the appeal period, the Veteran has had marked left ankle limitation of motion, with no nonunion or malunion of the tibia or fibula, and no ankylosis. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent for the left ankle disability, prior to October 29, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5262, & 5270 to 5274. 2. The criteria for an initial rating in excess of 20 percent for the left ankle disability, to include since October 29, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5262, & 5270 to 5274. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1978 to June 2000. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2015 rating decision that granted service connection and an initial 10 percent rating for the Veteran’s left ankle disability, effective September 4, 2015. An October 2020 rating decision granted a 20 percent rating, effective October 19, 2020. In March 2019, the Veteran testified at a Board video-conference hearing. The Board remanded the case in February 2020 for additional development, and the case now returns to the Board. In January 2021, the Board notified the Veteran and his representative that the Veterans Law Judge who held the 2019 Board hearing is no longer employed by the Board, although the hearing transcript is of record. The letter offered 30 days to request another hearing. No response has been received, so no new hearing is needed. 1. Initial rating in excess of 10 percent for the left ankle disability prior to October 29, 2020, and in excess of 20 percent thereafter The Veteran’s left ankle disability of status post open reduction and internal fixation (ORIF) of left ankle fracture with osteoarthritis has been rated under Diagnostic Code 5010-5271, for arthritis with limitation of motion of the ankle. The Veteran seeks a higher rating for his left ankle disability based on having a history of a broken left fibula bone that was repaired, pain and limitation of motion of the left ankle, and left knee problems as secondary to the left ankle. See January 2016 statement with notice of disagreement; March 2019 Board hearing. The December 2015 rating decision granted service connection and an initial rating for the Veteran’s left knee disability, but his formal notice of disagreement did not identify the rating for the left knee rating as on appeal. Rather, the appeal is limited to the left ankle rating. VA’s schedular percentage ratings are based on average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may be awarded if there are decreases or increases in symptomatology the meet the criteria for a different rating for a distinct period during the appeal period. Id. A separate rating may be assigned for non-overlapping conditions and symptoms, if the compensable criteria under the applicable code(s) are met. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); 38 C.F.R. § 4.14. A separate or higher rating may be awarded for musculoskeletal conditions based on range of motion if there is additional functional loss after repetitive use or flareups due to pain or other factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016); 38 C.F.R. §§ 4.10, 4.40, 4.45. This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant period on appeal; however, the Board has considered the entire record and history to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; see also Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). The February 2020 Board remand directed development to request the Veteran to identify and provide the necessary release for any outstanding VA or private treatment records, and attempt to obtain any sufficiently identified records. VA sent letters requesting such information in February 2020 and March 2020, but the Veteran did not respond. Moreover, he reported during his October 2020 VA examination that he had not sought treatment for his left ankle since service. The remand also directed that a new VA examination be obtained to assess the current severity of the left ankle, including information pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) (concerning range of motion measurements), and Sharp v. Shulkin, 29 Vet. App. 26 (2017) (concerning an estimate of additional functional loss during flareups and repeated use over time). This was completed through an October 2020 VA examination. There is no argument or indication that additional medical evidence or other development on remand is needed. VA recently amended the regulations for rating ankle and knee or leg disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Both sets of criteria will be considered for this pending appeal, and the Veteran is entitled to application of the criteria that are the most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under Diagnostic Code (DC) 5003, arthritis shown by X-rays will be rated based limitation of motion of the joint if the compensable criteria are met under the applicable code, which is the situation in the case on appeal. 38 C.F.R. § 4.71a. Normal ankle ranges of motion are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under the old regulations, Diagnostic Code (DC) 5271 provides for a 10 percent rating for moderate limited motion of the ankle, or a 20 percent rating for marked limited motion of the ankle. 38 C.F.R. § 4.71a. The words “moderate” and “marked” are not defined in this version of the criteria, and VA must evaluate all evidence to arrive at an equitable and just decision. See 38 C.F.R. §§ 4.2, 4.6. Under the new regulations, DC 5271 defines the terms “moderate” and “marked.” A 10 percent rating is assigned for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion); and a 20 percent rating is assigned for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a. In this case, the Veteran has had similar ankle symptoms and impairment throughout the appeal period. Resolving reasonable doubt in his favor, he had marked limitation of the ankle for the entire period, when considering the additional loss due to pain and other factors during flareups and repeated use. During the December 2015 VA examination, the Veteran summarized his history of a fractured his left ankle or broken fibula in August 1989, which was repaired with an ORIF with a plate, screws, pin, and wire. The examiner noted that the bone healed well, but there was residual pain and stiffness and a limp that were getting worse over time. The Veteran described his left ankle as stiff and painful when he bears weight on it, and he had a limp and decreased range of motion of the ankle. He described flareups of increased pain and stiffness with more weightbearing and walking. He had functional loss of being able to walk only 3/4 mile or stand for 15 minutes before needing to rest, needing to go down a set of stairs one step at time, a limited kneeling and squatting. The examiner noted that the Veteran’s left ankle joint was thickened, and he had slightly decreased strength of 4 out of 5, but no muscle atrophy. Range of motion testing measured dorsiflexion of 0 to 5 degrees and plantar flexion of 0 to 30 degrees, and pain with both movements continued to his described functional loss of limited ambulation and limping. The Veteran had crepitus and pain with weightbearing, and no change after repetitive testing. The examiner stated that pain and other factors would significantly limit the Veteran’s functional ability with flareups and repeated use over time, but could not give an estimate in terms of degrees of additional range of motion lost without resorting to speculation. No instability or dislocation was suspected for the left ankle. During his March 2019 hearing, the Veteran gave competent and credible testimony that he had hardly any motion in his left ankle. He stated that the ankle goes to the left side instead of backwards like it should, and he was unable to dorsiflex the ankle straight up because it goes to the side. The Veteran reported wearing a high boot for work that operates like an ankle brace to prevent it from giving out. He testified that he cannot stand for more than 15 minutes or walk for more than 3/4 of a mile, he walks with a limp, and he has to do take stairs one at a time because his ankle has no flexibility. These are similar to the reports and findings in the 2015 VA examination, with significant loss of dorsiflexion. During an October 2020 VA examination, the Veteran reported similar symptoms of pain, stiffness, a limp, decreased range of motion, and that the left ankle “locks up” at times. His pain had increased in severity, frequency, and intensity over time. The Veteran described flareups once a week that increased these symptoms to moderate or severe and lasted for less than 24 hours. He again reported a functional impact of being unable to walk more than 3/4 mile, stand for more than 15 minutes, or take more than one step at a time; and limited kneeling and squatting. Range of motion was measured as dorsiflexion from 0 to 5 degrees and plantar flexion from 0 to 25 degrees, with no change after repetitive testing. This is similar to during the 2015 VA examination, but with slightly more limitation of plantar flexion. The Veteran had pain with both movements that contributed to his described functional loss, as well as mild tenderness to palpation and crepitus. He had pain with weightbearing and non-weightbearing (at rest) and with both active and passive motion. This examiner was able to estimate the Veteran’s additional loss due to repeated use over time and flareups due to pain and other factors, identifying additional loss of dorsiflexion to 0 degrees and additional loss of plantar flexion to 15 degrees. Strength was again 4 out of 5, with no atrophy, and no suspected instability or dislocation. It appears that the Veteran’s reports of locking up or giving way during this examination and his hearing were due to pain. The Veteran reported working as a truck driver and losing one week in the past 12 months due to his left ankle pain with limitations described above. In summary, the Veteran reported similar symptoms and impairment during flareups or repeated use over time, and he had similar measured range of motion during the two examinations that was generally consistent with his description during his Board hearing. Under the rating criteria effective prior to February 7, 2021, his dorsiflexion was limited to 25 percent of normal (5 degrees versus normal 20 degrees) but reduced to 0 degrees during flareups or after repeated use. His plantar flexion was limited to approximately 55 to 65 percent of normal (25 or 30 degrees versus normal 45 degrees), but reduced to approximately 30 percent of normal (15 degrees ) during flareups or after repeated use. The Board finds that this amounts to marked limitation of the left ankle to warrant a 20 percent rating. Under the new or current version of DC 5271, marked limitation contemplates less than 5 degrees of dorsiflexion and less than 15 degrees of plantar flexion. The Veteran’s measurement of dorsiflexion prior to the estimated additional loss is at the borderline, and his plantar flexion is at the borderline when considering the additional loss estimate. Therefore, both criteria support a similar rating. There is no argument or indication of another applicable diagnostic code that would support a higher or separate rating for the Veteran’s left ankle under either version of the rating criteria. There is no ankylosis (DC 5270), ankylosis of the subastragalar or tarsal joint (DC 5272), malunion of os calcis or astragalus (DC 5273), or astragalectomy (DC 5274). Although the Veteran had impairment of the fibula status post ORIF, there is no suggestion of nonunion or malunion of the fibula to support a higher rating of 30 or 40 percent under the new or old codes (DC 5262). Instead, the Veteran’s bone healed well after his surgery. Finally, although the Veteran has scarring from his left ankle disability, a separate compensable rating is not warranted on that basis. See 38 C.F.R. § 4.118, DCs 7802 to 7805 (2018 and 2020). The 2015 and 2020 VA examinations both reflect two scars that are not painful or unstable (or with frequent covering of skin over the scar), as required for a separate compensable rating under DC 7804. The scars are not deep (or with underlying tissue damage), and the scars do not cover an area at least 144 square inches (929 sq. cm) or greater, as required for a separate 10 percent rating under DC 7802. The larger scar on the lateral ankle or lower leg measures 20 cm by 0.5 cm (or 10 sq. cm). A smaller scar on the medial ankle was measured as 8 cm by 0.5 cm (or 4 sq. cm) in 2015 or 7 cm by 0.4 cm (or 2.8 sq. cm) in 2020. There is also no limitation from the scars that is not contemplated by the rating under DC 5271 above to warrant a separate rating under DC 7805. Reasonable doubt is resolved in the Veteran’s favor to award a higher rating of 20 percent for the entire period appeal. As the preponderance of the evidence is against an even higher or separate rating, the appeal is otherwise denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.