Citation Nr: 21022970 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-22 735 DATE: April 19, 2021 ORDER A rating in excess of 10 percent for chronic left ankle sprain is denied. FINDING OF FACT For the entire appeal period, the Veteran’s chronic left ankle sprain is 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, 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 a rating in excess of 10 percent for chronic left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to September 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2019 and December 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a rating in excess of 10 percent for chronic left ankle sprain. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board begins on May 13, 2014, the date VA received the Veteran’s claim for an increased rating for his left ankle disability, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability is rated as 10 percent disabling pursuant to DC 5271, which, prior to February 7, 2021, provides for a 10 percent rating where there is moderate limitation of ankle motion. A 20 percent rating is warranted for marked limitation of ankle motion. 38 C.F.R. § 4.71. As of February 7, 2021, VA amended the rule pertaining to the evaluation of musculoskeletal disabilities, to include DC 5271. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 25,450 (November 27, 2020). Specifically, as of such date, DC 5271 provides for a 10 percent rating for moderate limited motion of the ankle, defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and a 20 percent rating for marked limited motion of the ankle, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The normal range of motion in the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Plate II. Also included within 38 C.F.R. § 4.71a are multiple DCs that evaluate ankle disability based on other manifestations, including DC 5270 (ankylosis of the ankle), DC 5272 (ankylosis of the subastragalar or tarsal joint), DC 5273 (malunion of the os calcis or astragalus), and DC 5274 (astragalectomy). Throughout the course of the appeal, the Veteran has reported pain, swelling, instability, and limitation in the range of motion of the left ankle, which limited his daily activities. Additionally, a September 2014 private treatment record reflects the Veteran’s complaint of left ankle weakness and pain, which was increased by work duties and activities of daily living, walking, and standing. Such record further reflects that the Veteran was prescribed a prosthetic brace for his left ankle and, due to compensation for his left ankle instability, he had developed postural mal-positioning, and pelvic and spinal symptoms. An assessment of pain in joint (ankle and foot) was noted. At a February 2015 VA examination, the Veteran reported pain in the left ankle and endorsed flare-ups, which he reported occurred if he stepped off the curb incorrectly, and indicated that such occurred 3 times a month and lasted one to two days. Reported functional loss/impairment included an inability to run, climb, and tactical shoot. Upon examination, his range of left ankle motion was normal in all planes. Pain was noted; however, such did not result in or cause functional loss. There was pain on weight-bearing, but no objective evidence of localized tenderness to palpitation of the soft tissue surrounding the ankle joint or crepitus. Following repetitive use testing, there was no additional loss of function or range of motion. The examiner noted that he was unable to say without mere speculation whether pain, weakness, fatigability, and incoordination significantly limited functional ability with flare-up as such was not present at the time of the examination. Muscle strength testing was normal, and there was no ankylosis, instability or dislocation, or malunion of os calcis or astragalus. He had not had an astragalectomy and regularly used a brace. The Board notes that, at the November 2018 Board hearing, the Veteran reported that the February 2015 VA examiner did not check the movement of his ankles or his ability to support weight on his ankles; however, the examination report clearly shows that range of motion testing was completed and he was able to weight-bear. He further testified that one of his tendon’s had frayed, and he experienced ankle pain, which limited his daily activities, instability, limitation in the range of motion, and instability. Thus, in light of such reported symptomatology, the Board remanded the case in order to afford the Veteran a contemporaneous VA examination so as to assess the nature and severity of his left ankle disability. Thereafter, at a December 2019, VA examination, the Veteran reported that his left ankle disability resulted in neuropathy of the left side of the foot, tingling of the toes, and an inability to do chores around the house. He also indicated that he experienced flare-ups, which were described as occasional debilitating and occurred 5 to 7 times a year, lasted 2 days to a week. The Veteran further reported experiencing functional loss or impairment as a result of his left ankle disability, which he described as difficulty with chores, social activities, prolonged walking and standing, and participating in activities with his daughter. Upon examination, which included a normal evaluation of the Veteran’s right ankle, i.e., the opposite undamaged joint, his range of left ankle motion was limited to 15 degrees of dorsiflexion and 25 degrees of plantar flexion, with pain that caused functional loss. The abnormal range of motion contributed to functional loss, to include decreased range of motion with pain, fatigue, lack of endurance, and weakness. There was no pain with passive range of motion testing, weight-bearing, or nonweight-bearing. See Correia, supra. While the Veteran had localized tenderness to palpitation of the soft tissue surrounding the ankle joint, there was no crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, which resulted in additional loss of range of motion of plantar flexion limited to 15 degrees, with pain, fatigue, weakness, and lack of endurance. There was no additional loss of dorsiflexion. The Veteran was not examined immediately after repeated use over time or during a flare-up; however, the examiner noted that the examination was medically consistent with his statements describing functional loss during such events, and estimated that such would result in plantar flexion limited to 20 degrees with no additional loss of dorsiflexion, with pain, fatigue, and lack of endurance. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). No ankylosis was noted. Muscle strength testing was 4/5 for plantar flexion and dorsiflexion with no muscle atrophy. There was no instability or dislocation, or malunion of os calcis or astragalus, and he had not had an astragalectomy. The Veteran regularly used a brace and cane. Pursuant to the December 2020 Board remand, a January 2021 addendum opinion addressing the range of motion findings from the February 2015 VA examination was obtained. In this regard, the examiner reported that, with respect to Correia, the record indicated that the Veteran had a left ankle disability with normal range of motion in 2015 when his X-rays showed no evidence of arthritis, but developed limitations in range of motion at a later date when radiographs showed arthritic changes. Thus, based on the body of current medical knowledge and the evidence of record, it was his opinion that, at the time of the February 2015 VA examination, the Veteran’s left ankle passive range of motion and on nonweight-bearing was normal. Further, VA treatment records dated through December 2020 reflect ongoing complaints of left ankle pain, which increased with activity, but the Veteran reported that he continued to work as a federal agent and exercise, to include 30 minutes on a treadmill every day. Based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran’s left ankle disability is not warranted as there is no evidence of marked limitation of left ankle motion or functional loss that would more nearly approximate marked limitation of motion of the ankle. Specifically, while the Veteran has reported pain, swelling, and limitation in physical activities, his range of motion has been minimally affected. In this regard, the Veteran’s dorsiflexion and plantar flexion are limited, at most, to 15 degrees, to include as a result 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. Specifically, while “marked” and “moderate” are not described in the rating criteria as in effect prior to February 7, 2021, guidance can be found in the VA Adjudication Procedures Manual, M21-1 (Manual). The Manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees of plantarflexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See M21-1, III.iv.4.A.3.k. The Manual is not binding on the Board. However, the Board must address relevant provisions of the Manual and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to supports is decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). In this regard, in finding that the Veteran’s limitation of left ankle motion was not more accurately defined as “marked,” the Board considers VA’s proposed changed to DC 5271, which was published in February 2003. See 68 Fed. Reg. 6998. In the proposed regulation, VA noted that it hired an outside consultant to recommend changes “to ensure that the schedule uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review. The consultant convened a panel of non-VA specialists to review the portion of the rating schedule dealing with the musculoskeletal system in order to formulate recommendations.” Id. Regarding DC 5271, VA noted that the terms “marked” and “moderate” are subjective and proposed to substitute more objective criteria that was recommended by the consultants. Specifically, it was proposed to assign a 20 percent rating if there was less than 5 degrees passive dorsiflexion or less than 10 degrees passive plantar flexion, and a 10 percent rating if there was less than 15 degrees of passive dorsiflexion or less than 30 degrees passive plantar flexion. Id. at 7018. It was noted that this change would promote consistent evaluations. Id. The Board finds the explanation of the proposed regulation to be persuasive. Significantly, VA consulted with specialist medical professionals who recommended objective criteria based upon current medical knowledge with the specific intent of ensuring more consistent outcomes for veterans. Thereafter, in August 2017, VA again proposed to change DC 5271. See 82 Fed. Reg. 35719. VA noted that the criteria set forth in DC 5271 are “subjective and the terminology is vague, resulting in inconsistent evaluations.” VA proposed to define “marked” as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, and “moderate” as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. Id. at 35723. VA noted that, “[a]s VA currently uses these standards to define marked and moderate, this change is intended as clarification of current policy and would ensure consistent application of these criteria among rating personnel.” Id. The Board, again, finds the explanation of the proposed regulation to be persuasive as VA is expressing its intent to codify a policy that was employed to ensure more uniformity among its rating personnel. Additionally, the proposed criteria were similar to those proposed in 2003, with the exception that the word “passive” was not included. Furthermore, in Dorland’s Illustrated Medical Dictionary, 1592 (32nd ed. 2012), range of motion redirects the reader to “exercise.” Passive exercise is “motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient’s own body.” Id. at 658. Active exercise of “motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part.” Id. It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the veteran’s joint farther than he would be able to move it on his own. Therefore, the omission of the word “passive” from the 2017 proposed regulation is likely more favorable to veterans, which causes the Board to be further inclined to employ its use. The Board does not consider the Manual’s provision to be binding, but finds the reasoning employed in the 2003 and 2017 proposed rules to be highly persuasive in support of a finding that the ranges of motion listed in the Manual are appropriate, given that they are nearly identical to the 2003 proposal that was made in consultation with specialist medical professionals. Moreover, in the most recent revision to DC 5271, effective February 7, 2021, VA codified the foregoing definitions of marked and moderate, defining the former as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, and the latter as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. Consequently, as the Veteran’s dorsiflexion and plantar flexion were limited to, at most, 15 degrees, even in consideration 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, throughout the appeal period, such does not more nearly approximate marked limitation of ankle motion. Therefore, a higher rating under DC 5271 is not warranted. The Board has also considered the Veteran’s competent report that he experiences instability of the left ankle, which he attributes to a frayed tendon. However, both February 2015 and December 2019 VA examinations specifically revealed normal stability in the left ankle. Additionally, his joint had full muscle strength on testing in February 2015 and 4/5 muscle strength in December 2019. Therefore, the Board finds that the functional loss stemming from such symptomatology, to include in light of 38 C.F.R. §§ 4.40 and 4.45, which consider diminished coordination and instability of station, respectively, does not result in symptomatology that more nearly approximates marked limitation of ankle motion. Further, while the Veteran reported neuropathy of the left side of the foot and tingling of the toes during the December 2019 VA examination, he is currently in receipt of a separate rating for left lower extremity radiculopathy. As such, assigning a separate rating for neurological impairment related to the Veteran’s left ankle disability would result in impermissible pyramiding. 38 C.F.R. § 4.14. Moreover, as there is no evidence of ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy at any point during the appeal period, higher or separate ratings under DCs 5270, 5272, 5273, and 5274 are not warranted. In reaching the foregoing determinations, the Board acknowledges the Veteran’s sincerely held belief that his left ankle symptoms are more severe than as reflected by the currently assigned rating. While the Board recognizes that he is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, 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 of his disability. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s left ankle disability; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative 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). Based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran’s left ankle disability is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, such doctrine is inapplicable and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.