Citation Nr: 21024075 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-05 789 DATE: April 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for residuals of left ankle fracture is denied. FINDING OF FACT The Veteran’s residuals of left ankle fracture have not more nearly approximated marked limitation of motion of this ankle at any time during the appeal period, to include consideration of flare-ups. CONCLUSION OF LAW The criteria are not met for an initial disability rating higher than 10 percent for the residuals of the left ankle fracture. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5270-5274 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1985 to August 1989 and from October 2004 to December 2005. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for residuals of a left ankle fracture and assigned an initial compensable rating. The Veteran timely appealed the initial rating assigned. In November 2018, the Board granted an initial rating of 10 percent, but no higher, for residuals of a left ankle condition. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court approved a June 2019 Joint Motion for Partial Remand (JMPR), which vacated the decision and remanded the issue to the Board. In December 2019 and September 2020, the Board remanded the issue of an initial higher rating for a left ankle disability to the RO for additional development. In its September 2020 remand, the Board instructed the agency of original jurisdiction (AOJ) to afford the Veteran an examination to assess the current severity of the Veteran’s left ankle disability. As indicated in the discussion below, the November 2020 Disability Benefits Questionnaire and Medical Opinion are adequate to decide the claim and the AOJ therefore complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial rating in excess of 10 percent for residuals of left ankle fracture. The Veteran contends that his service-connected residuals of left ankle fracture warrant a rating in excess of 10 percent. Service connection was granted in October 2014 rating decision, effective September 24, 2012. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. Diagnostic Code 5271 provides a 10 percent evaluation for “moderate” limitation of motion of the ankle and a 20 percent evaluation for “marked” limitation of motion of the ankle. Normal ranges of motion of the ankle are as follows: Dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38C.F.R. § 4.71a, Plate II. The terms “moderate” and “marked” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. When evaluating the severity of a disability, it is essential the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 Veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” Turning to the evidence for the period on appeal, the Veteran reported left ankle pain in November 2013, stating that the pain was normally a 5 or 6 on a scale of 10, but when swollen the pain was 10/10. The clinician found that the pain was not debilitating and that the Veteran had a full active range of motion with normal strength, but chronic pain in the ankle. Imaging showed that the left ankle was within normal limits but “there may be mild focal bony productive change along the medial malleolus, seen only on the provided oblique projection... Impression: no evidence of acute fracture or dislocation.” A May 2014 VA treatment record noted chronic left ankle and left leg pain as problems and stated that the left ankle pain was stable and that the Veteran was using Motrin and an analgesic balm for pain relief. VA treatment records list left ankle arthralgia as a problem again in August 2014. The Veteran underwent a VA examination in October 2014. The Veteran reported left ankle discomfort and instability at times. He said that he had a left ankle brace which he used in cold or rainy weather, and that he has pain with prolonged walking and climbing stairs. He said that he did not have flare ups. The examiner noted January 2010 X-rays which showed a healing distal fibular fracture with the fracture line still evident but no interval displacement. The examiner stated that the Veteran’s functional impairment would be pain with prolonged standing, walking, or climbing stairs. The Veteran stated that he had missed three days of work due to his left ankle. VA performed an MRI of the left ankle in January 2015 and found probable chronic ligament pathology. VA physical therapy notes in March and April 2015 state that the Veteran had a lateral fullness of the left foot and also mild tenderness along the lateral malleolus which is able to bear weight. The Veteran reported recurrent pain and swelling in the ankle since originally fracturing it in 1985 and re-fracturing it in 2009. In July 2015, Dr. T. B., the Veteran’s VA primary care provider, wrote that the Veteran was being treated for chronic ankle pain. He said that the Veteran had a partial AFTL tear and a recurrent fracture, and that he had been in physical therapy since January 2015 with a total of nine visits to date. The doctor said that the Veteran’s prognosis was fair and that he is expected to have chronic intermittent pain indefinitely. A September 2015 VA treatment note, the Veteran reported that his left ankle pain had been improved due to the physical therapy. The Veteran underwent a Disability Benefits Questionnaire for Ankle Conditions in February 2020. He reported chronic ankle pain and said that physical therapy did not relieve the pain. He reported swelling and wears an ankle brace often due to the pain. The Veteran said that flare ups led to increased pain in the ankle. On initial range of motion testing, the Veteran had a normal range of motion but showed pain on dorsiflexion and plantar flexion and the pain resulted in functional loss. The Veteran also showed pain on weight-bearing, tenderness to palpation and crepitus. The clinician did not note where the pain onset during ROM testing. The Veteran showed no additional loss of function or ROM after three repetitions. The clinician stated that the Veteran’s functioning would not be significantly limited by pain, weakness, fatigability, or incoordination with repeated use over time or during a flare up. The strength of left ankle plantar flexion and dorsiflexion was reduced (4/5). The clinician found no ankylosis, and instability or dislocation was not suspected. There were no shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus (os calcis) or talus (astragalus), and the Veteran had not had an astragalectomy. The Veteran reported that he regularly used a left ankle brace. In terms of functional impact, the Veteran reported he must avoid prolonged walking or standing and that he could no longer run (he stated that he used to run regularly), and that he had to transfer to a desk job due to his inability to stand for long periods. The Veteran showed pain on passive ROM testing and non-weight-bearing, but the clinician did not state at what point the pain began. Another Disability Benefits Questionnaire was prepared in November 2020. The doctor examined the Veteran and reviewed his VA e-folder. The Veteran said that he first fractured the ankle in 1985 and fractured it a second time in 2009. Current symptoms include swelling in cold weather and the Veteran is unable to drive a car for more than 90 minutes unless he stops to stretch his ankle. The Veteran said that he had flare ups in cold weather or after standing too long, and during flare ups he must sit down. He also said that the condition makes it impossible for him to run or swim. Initial ROM testing showed dorsiflexion 0 to 20 degrees and plantar flexion limited to 0 to 35 degrees. There was pain on testing dorsiflexion and plantar flexion. The Veteran showed mild pain on palpation behind the medial malleolus. The Veteran also displayed pain on weight-bearing but there was no evidence of crepitus. There was no additional loss of function or ROM after three repetitions. Although the Veteran was not examined immediately after repetitive use of the ankle over time, the doctor said that pain (but not fatigue, weakness, lack of endurance, or incoordination) does limit the functional ability with repeated use over time, with dorsiflexion limited to 0 to 20 degrees and plantar flexion 0 to 35 degrees (the same as initial ROM testing). The doctor stated that during flare ups, the Veteran’s left ankle ROM is also limited to the same points. The left ankle did not have swelling, deformity, atrophy of disuse, or other contributing factors of disability. However, on muscle strength testing, the Veteran’s left ankle dorsiflexion and plantar flexion were both reduced to 4/5, and that reduction is due to the service-connected disability. There was no muscle atrophy or ankylosis and joint stability was not tested. The Veteran stated that he used an ankle brace regularly. The doctor found that the left ankle condition had no functional impact. Finally, the doctor noted that there was pain in non-weight-bearing movement, that passive ROM testing of the left ankle was the same as active ROM testing, and that the objective evidence of pain for passive ROM testing was the same as for active ROM testing. The doctor also issued a separate November 2020 medical opinion in response to the RO’s questions. First, the doctor stated that the Veteran’s left ankle passive motion pain started at 20 degrees dorsiflexion and 35 degrees plantar flexion, but that he was unable to get accurate measurements for when the pain started in active motion or weight-bearing. He said that the Veteran’s functional loss during flare ups is as detailed in the Ankle Disability Benefits Questionnaire. The doctor could not ascertain any increased loss of ROM during the flare ups which are brought on by cold weather or standing too long; the Veteran stated only that he needed to sit down during the flare ups. The Veteran did not express any further loss of range of motion when using the left ankle brace, and did not describe numbness, swelling or stuffiness. First, the RO substantially complied with the Board’s remand directives of September 2020, which were based on the finding by the parties to the joint motion that the October 2014 VA examination was inadequate. In that remand order, the Board directed that the examiner test range of motion of the bilateral ankles for pain in active, passive, weight-bearing and non-weight-bearing motion, and to note the point of the onset of pain in each. If the examiner could not provide a specific measurement without speculation, he or she was to explain why. The examiner was also asked to discuss functional loss during flare ups and/or with repeated use, and the degree of limitation of motion of the ankle during periods of numbness, swelling, stuffiness, or when using an ankle brace. The November 2020 doctor said that left ankle passive motion pain started at 20 degrees dorsiflexion and 35 degrees plantar flexion, and that he was unable to get accurate measurements for pain in active motion and weight-bearing movement. The Veteran did not describe any additional loss of range of motion during flare ups, only that he needs to sit at those times. Finally, the doctor noted that the Veteran did not describe any increased loss of ROM when using a brace and did not share with the doctor any history of numbness, swelling, or stuffiness. The Veteran is competent to report the symptoms associated with his service-connected left ankle disability and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed. Cir. 2006). Nevertheless, regardless of the competent and credible reports of ankle pain and swelling and stiffness, the preponderance of the evidence supports the conclusion that the Veteran’s symptoms most closely approximated the criteria for no more than a 10 percent rating during the entire claim period. Specifically, the ranges of ankle motion during this period and a preponderance of the evidence shows that even considering pain and other functional factors, the Veteran’s ankle symptoms were not shown to be so disabling to actually or effectively result in marked limitation of ankle motion, which is the requirement for a 20 percent rating for limitation of ankle motion under DC 5271. The evidence indicates that the Veteran’s left ankle range of motion is no less than 20 degrees dorsiflexion and 35 degrees plantar flexion, including passive, active, weight-bearing, and non-weight-bearing movement, during flare ups and when wearing an ankle brace. As the normal range of motion is 20 degrees dorsiflexion and 45 degrees plantar flexion, the Veteran’s limitation is not marked. 38 C.F.R. § 4.71a, Plate II. Thus, the range of motion does not call for an increased 20 percent rating under DC 5271. VA must also consider the factors listed in 38 C.F.R. § 4.40 and 4.45 when assigning a disability rating for a musculoskeletal disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the evidence indicates that the Veteran has painful movement, weakness of movement, tenderness to palpation, swelling in cold weather and after standing for long periods, and that he frequently uses an ankle brace. The Veteran also reported numbness once in June 2013 and stiffness in December 2014. However, the November 2020 DBQ indicated that the ankle does not result in functional impairment other than difficulty standing or driving for long periods. The 10 percent rating assigned under DC 5271 already contemplates the Veteran’s functional impairment due to left ankle pain. The other factors of disability, which have been considered by the Board pursuant to the instructions in the joint motion, do not more nearly approximate a marked limitation of motion of the ankle. Thus, a higher rating based on the DeLuca factors is not warranted. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. at 202 (1995). The Board has also considered whether a higher rating is warranted under any other potentially applicable diagnostic code related to ankle conditions. However, the Veteran does not have ankylosis of the ankle or ankylosis of the subastragalar or tarsal joint, or malunion of the os calcis or astragalus, or an astragalectomy, as documented in the VA examination reports and treatment records. Consideration of Diagnostic Codes 5270, 5272, 5273, and 5274 is therefore not warranted. The Board has also considered whether additional staged ratings are appropriate in this case. However, the above evidence reflects that the Veteran’s symptomatology has been stable throughout the appeal period and was consistent with no more than a 10 percent rating since service connection was granted, effective September 24, 2012. Therefore, a staged rating is not warranted in this case. Finally, a different result is not warranted under the amended version of 38 C.F.R. § 4.71a, DC 5271 effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). The amended version of the regulation elaborates that moderate limitation of motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and marked limitation of motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The evidence and analysis above reflect that limitation of the Veteran’s left ankle has not more nearly approximated less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, to include consideration of flare-ups, at any time during the appeal period. For the above reasons, an initial rating higher than 10 percent is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean, 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.