Citation Nr: 21024696 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-39 116 DATE: April 23, 2021 ORDER Entitlement to an increased rating for residuals of an injury to the left ankle, currently evaluated at 10 percent disabling, is denied. Entitlement to an increased rating for residuals of an injury to the right wrist and hand, currently evaluated at 10 percent disabling, is denied. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran’s residuals of left ankle injury are manifested by mild to moderate limited motion; it is not manifested by marked limitation of range of motion, reveal ankylosis, malunion of the os calcis or astragalus, or astragalectomy. 2. Throughout the appellate period, for the Veteran’s residuals of right wrist injury the record does not show ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4,71a, Diagnostic Codes 5271, 5299. 2. The criteria for an evaluation in excess of 10 percent for a right wrist disability have not been met. 38 U.S.C. §§ 1155, 5108; C.F.R. § 4.71a, Diagnostic Code 5215, 5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to December 1981. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge (VLJ) in September 2017. A transcript of the proceeding is associated with the record. This claim was previously remanded by the Board in March 2018 for further development, to include providing VA examinations and updating VA treatment records. The Veteran was sent a letter on August 4, 2020 from the VA asking for a waiver for evidence submitted to the claims file after August 28, 2019. The Veteran never responded so the case was remanded by the Board in September 2020 for review of this evidence by the AOJ. Updated August 2018 to October 2020 VA treatment records were obtained and thereafter the AOJ issued a supplemental statement of the case. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability there from and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). 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). 1. Entitlement to an increased rating for residuals of an injury to the left ankle, currently evaluated at 10 percent disabling. The Veteran contends that residuals of his left ankle injury warrants a rating in excess of 10 percent. On May 4, 2011, the VA received the Veteran’s claim for increased evaluation of the service-connected left ankle disability. The Veteran’s left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271-5299, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Disabilities of the ankle are also evaluated under diagnostic codes 5270 (ankylosis of the ankle), 5272 (ankylosis of subastragalar or tarsal joint), 5273 (malunion of the os calcis or astragalus), and 5274 (astragalectomy). 38 C.F.R. § 4.71a. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71(a), Plate II. The Board notes that the words “moderate” and “marked” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence of the record, both lay and medical, and make a determination as to the functional impact of the disability. See 38 C.F.R. § 4.6. The Board is cognizant that DC 5271 was recently amended to add range of motion criteria in degrees to the subjective terms. This new criteria is effective from February 2021. For a 20 percent rating, marked is defined as less than 5 degrees in dorsiflexion or less than 10 degrees plantar flexion. The Board notes that these new criteria would not effect the outcome of this appeal and therefore are not further addressed. July 2011 examination showed a diagnosis of left ankle pain. The Veteran reported ankle fracture. He reported unable to stand for more than a few minutes, unable to walk more than few yards. Left ankle plantar flexion ended at 40 degrees. There was no objective evidence of painful motion. Left dorsiflexion ends at 20 degrees. The Veteran was able to perform repetitive-use tests with 3 repetitions. The Veteran had no additional limitation in range of motion (ROM) of the ankle following repetitive-use testing. The report also noted that he did not have functional loss and/or impairment of the ankle. The Veteran’s left ankle condition impacted his ability to work. Specifically, the report indicated that he had decreased mobility and pain. The Veteran underwent a VA examination of the ankle in September 2018. The examiner found that there was no acute fracture or dislocation. The Veteran reported flare-ups of the ankle having an episode of increased left ankle pain that required treatment with boot immobilization. The Veteran reported functional loss or functional impairment to include difficulty walking or standing for long periods of time. Left ankle ROM was abnormal with dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 35 degrees. ROM itself did not contribute to a functional loss. No pain was noted on examination but there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue described as diffused TTP. However, if this did/did not result in or cause functional loss, the examiner was unable to say without mere speculation. Dorsiflexion and plantar flexion exhibited pain. There was no evidence of pain with weight bearing. There was no crepitus. He was able to perform repetitive use testing at least three times, but the examiner was unable to say without mere speculation, if it was without additional loss of function or ROM. He had normal strength upon plantar flexion and dorsiflexion. He did not have muscle atrophy or ankylosis. Left ankle instability or dislocation was not suspected. There was no laxity compared when with the other side. In the past, he has not had shin splints. He continued to regularly use a cane. There was pain noted on both passive and active rom. The complaint of pain was at the limits of the ROMS listed in the DBQs. A September 2019 VA medical record showed that muscle strength is 4/5 with patient guarding noted. Ankle joint, Subtalar joint, Mid-tarsal joint, Metatarsalphalangeal joint ROM are full without crepitus. Pain noted with ROM. Anterior Drawer Sign Left, negative. Based on the above, the Board concludes that, throughout the appeal period, a rating in excess of 10 percent for a left ankle disability is not warranted. The Board finds that the disability is manifested by limitation of motion, but that such limited motion is not marked or more nearly approximates the marked level. The July 2011 examiner reported left dorsiflexion: 0 to 20 degrees left plantar flexion: 0 to 40 degrees. The September 2018 examiner reported left dorsiflexion: 0 to 15 degrees left plantar flexion: 0 to 35 degrees and shows there was no ankylosis noted. The September 2019 medical record reported that muscle strength is 4/5, and ROM are full without crepitus. The overall medical evidence shows limitation of motion that is moderate on both flexion and dorsiflexion, which is consistent with the impairment associated with a 10 percent rating. Additionally, as the record does not reveal ankylosis, malunion of the os calcis or astragalus, or astragalectomy, of the left ankle, a higher rating is not warranted. Therefore, throughout the appeal period, the Veteran exhibited symptoms that are consistent with his level of disability, and a rating in excess of 10 percent must be denied. 2. Entitlement to an increased rating for residuals of an injury to the right wrist and hand, currently evaluated at 10 percent disabling. The Veteran contends that residuals of his right wrist injury warrants a rating in excess of 10 percent. On May 4, 2011, the VA received the Veteran’s claim for increased evaluation of the service-connected right wrist disability. The Veteran is currently assigned a 10 percent evaluation under DC 5215-5010 which provides evaluation for limitation of motion of the wrist. A 10 percent is assigned for palmar flexion limited in line with forearm for major and minor joints or when dorsiflexion is less than 15 degrees for major and minor joints. 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a joint. For the Veteran to receive a higher evaluation than 10 percent for his wrist disability, the evidence must show ankylosis of the wrist under DC 5214. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). During a July 2011 VA wrist examination, the Veteran indicates decreased manual dexterity, problems with lifting and carrying, decreased strength: upper extremity, pain, but no flare-ups. Right wrist range of motion testing found palmar flexion to 68 degrees, dorsiflexion to 69, ulnar deviation to 39, and radial deviation to 20. The examiner noted objective pain with weight-bearing. The examination report stated that there was no limited function with repeated use over time. The Veteran used a wrist brace frequently. At a September 2018 VA wrist examination, the Veteran reported no flare-ups. The patient reports difficulty writing and grasping objects. The wrist had an abnormal range of motion when initially tested. The Veteran had no pain on dorsiflexion, and no additional loss of motion. The right wrist was tender on palpation of the joint or associated soft tissue (diffuse TTP), and not painful on weight bearing. The Veteran was able to perform repetitive use testing at least three times. Range of motion was limited to 75 degrees of palmar flexion, 60 degrees of dorsiflexion, 35 degrees of ulnar deviation, and 15 degrees of radial deviation with repeated use over time. The Veteran had no pain with repeated use of the right hand. Muscle strength was 5/5, with no atrophy. The patient’s reported loss of grip strength is less likely than not related to his S/C condition. The patient has no motor weakness on examination. VAMC treatment records do not show favorable ankylosis in 20 to 30 degrees of dorsiflexion. Based on the evidence of record, the Board finds that the criteria for the assignment of a rating in excess of 10 percent have not been met at any time during the appeal period. The Board finds that the disability is manifested by limitation of motion. The disability, however, is not manifested by ankylosis. Higher evaluations are based on the presence of ankylosis. In this regard although the Board sought additional VA medical opinion based on the Veteran’s contentions that he had “frozen joints,” the subsequent VA examination provided competent evidence that the Veteran retains range of motion. The Board finds that this demonstrated ability in examination to move these joints is more probative then lay statements when physical findings reflect continued functional use of the wrist joint.   The Board finds that the preponderance of the evidence is against the assignment of any higher rating. Therefore, the claim for an increased rating for a right wrist disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ottley III 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.