Citation Nr: 21024279 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-23 019 DATE: April 22, 2021 ORDER A staged increase to 20 percent (from April 1, 2015) for a left ankle disability is granted; entitlement to a rating in excess of 10 percent prior to April 1, 2015 is denied. FINDING OF FACT Prior to April 1, 2015 the Veteran’s left ankle disability was manifested by painful motion; from that date it is reasonably shown to be manifested by marked impairment. Ankylosis, malunion of os calcis or astragalus have not been shown, and the Veteran has not undergone an astragalectomy. CONCLUSION OF LAW Prior to April 1, 2015 the criteria for a rating in excess of 10 percent for a left ankle disability have not been met; from that date the criteria for a rating in excess of 20 percent for left ankle disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from June 2003 to October 2007 including service in Iraq. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A staged increase to 20 percent (from April 1, 2015) for a left ankle disability is granted; entitlement to a rating in excess of 10 percent prior to April 1, 2015 is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the Veteran’s appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable. The Veteran’s residuals of a left ankle fracture are rated under Code 5271 (for limitation of ankle motion). Prior to February 7, 2021 Code 5271 provided for a 10 percent rating for moderate limitation of motion and a 20 [maximum] percent rating for marked limitation. The terms “moderate” and “marked” were not defined within the Code. Normal ranges of ankle motion are dorsiflexion 0 to 20 degrees and plantar flexion 0 to 45 degrees. 38 C.F.R. § 4.71a, and Plate II. From February 7, 2021, Code 5271 provides for a 10 percent rating for moderate limitation of motion (noted as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 [maximum] percent rating for marked limitation of motion (noted as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). See 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned for different periods of time based on facts found where the disability fluctuated in severity during the evaluation period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The claim for an increased rating for a left ankle disability was received July 7, 2014, and the period for consideration begins one year prior. On November 2014 VA examination, the diagnosis was left ankle strain. No flare-ups were reported. Range of motion was normal. The left ankle was not ankylosed. In February 2015 correspondence, the Veteran contended that he experienced marked limitation of motion. He reported an increase in severity of pain in the left ankle, and left ankle swelling. An April 1, 2015 podiatry record notes the Veteran was seen with left ankle pain. It was noted that the left ankle range of motion was 15 degrees dorsiflexion with the knee flexed and 10 degrees with the knee extended. No pain with ankle range of motion was shown. In January 2016 correspondence the Veteran reported daily swelling, pain, and tenderness of the left ankle. In February 2016 the Veteran was seen with complaints of left ankle pain. No major functional limitations were noted. The Veteran reported increased pain with prolonged walking, and after exercise. An April 2017 primary care record notes the Veteran was seen for complaints of left ankle pain. The Veteran stated he had twisted it about one month prior. On December 2019 VA examination, the diagnosis was tendonitis. The Veteran reported constant pain and swelling, and reported the ankle twists easily. Flare-ups were reported and the Veteran described symptoms during a flare-up as stiffness and difficult to put pressure on the ankle. Left ankle range of motion was abnormal with dorsiflexion to 10 degrees and plantar flexion to 35 degrees. Pain was noted as contributing to functional loss. Evidence of pain with weight bearing was shown. Localized tenderness and pain on palpation was shown. Repetitive testing did not result in additional functional loss. Range of motion during flare-ups were estimated as 5 degrees for dorsiflexion, and 30 degrees for plantar flexion. Muscle atrophy and ankylosis were not shown. It was noted that the Veteran regularly used a left ankle brace. In October 2020 correspondence, the Veteran reported that his ankle swells after prolonged use. The Veteran also reported that his left ankle has gotten worse over the years. On January 2021 ankle conditions disability benefits questionnaire (DBQ), the diagnosis was left ankle tendinitis. The Veteran reported flare-ups with swelling in the left ankle and mild pain. Range of motion was abnormal with plantar flexion to 35 degrees and dorsiflexion to 10 degrees. Pain was noted on examination with weight bearing, active, and passive motion. Repetitive use testing resulted in plantar flexion to 30 degrees and dorsiflexion to 10 degrees. Range of motion during a flare up was estimated as plantar flexion to 20 degrees, and dorsiflexion to 10 degrees. Additional symptoms of the Veteran’s disability were noted as interference with standing, swelling, disturbance of locomotion, less movement than normal, and instability of station. Muscle atrophy and ankylosis were not shown. It was noted that the Veteran regularly used a left ankle brace. Initially, for the duration of the pendency of this appeal the Veteran’s left ankle was not shown to be ankylosed, malunion of os calcis or astragalus has not been shown, and the Veteran has not undergone an astragalectomy. Accordingly, entitlement to ratings under Codes 5270, 5272, 5273, and 5274 (for such pathology/impairment) is not for consideration. Currently, the Veteran’s left ankle disability is rated 10 percent for the pendency of the appeal. Accordingly, the question of whether the Veteran is entitled to a rating in excess of 10 percent for the left ankle during any part of the pendency of the appeal is to be determined. Prior to April 1, 2015 Prior to April 1, 2015 the Veteran reported experiencing ankle pain. On November 2014 examination, the Veteran’s left ankle range of motion was normal. The Board acknowledges the Veteran’s February 2015 allegation that his left ankle showed marked limitation of motion. However, the evidence of record does not demonstrate a marked limitation of motion prior to April 1, 2015. Prior to April 1, 2015, the Veteran’s left ankle disability is shown to be manifested by painful motion with swelling. However, the record does not contain evidence of a reduction in range of motion. Accordingly, a rating in excess of 10 percent (rated as such for painful motion) prior to April 1, 2015 is not warranted. See 38 C.F.R. § 4.59. From April 1, 2015 The April 1, 2015 podiatry record notes a dorsiflexion to 10 degrees. On examinations in December 2019 and January 2021 the Veteran’s range of motion has continued to be impaired to no more than half of what is considered normal range of motion for dorsiflexion. Additionally, since April 1, 2015 the Veteran has consistently reported painful motion and swelling of the left ankle. Under such circumstances given the Veteran’s lay statements, the April 2015 podiatry treatment record, and the December 2019 and January 2021 VA examinations it may reasonably be found that from April 1, 2015 the Veteran’s left ankle disability impairment most closely approximates a “marked” limitation level of impairment. See 38 C.F.R. § 4.3. Accordingly, it is shown that a 20 percent rating is warranted from April 1, 2015. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.