Citation Nr: 21025089 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-36 396 DATE: April 27, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for residuals of left ankle sprain is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s residuals of a left ankle sprain have been productive of complaints of pain and loss of range of motion; however, ankylosis of the left ankle has not been demonstrated by x-ray findings or by analogous functional loss. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for residuals of left ankle sprain are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1975 to May 1977. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office. This appeal was previously before the Board in July 2019. The Board granted the Veteran’s claim in part, and established staged ratings for the Veteran’s ankle. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and a Joint Motion for Partial Remand (JMPR) was issued in June 2020. The JMPR vacated the Board’s decision in part, while leaving intact the favorable decision to increase the Veteran’s left ankle evaluation to 20 percent from May 3, 2017. The parties agreed the Veteran’s claim warranted further medical evaluation, and reconsideration by the Board. The Board then remanded the claim in November 2020 for further medical evaluation. Following the November 2020 Board remand, in April 2021, the RO issued a rating decision granting a 20 percent disability rating for residuals for left ankle sprain prior to May 3, 2017, with an effective date of October 17, 2012 (the date of his claim for an increased rating). The Veteran is now rated at 20 percent for the entire period on appeal. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a disability rating in excess of 20 percent for residuals of left ankle sprain. The Veteran seeks a higher disability rating for his residuals of left ankle sprain. The Veteran’s left ankle disability is now rated as 20 percent disabling under Diagnostic Code 5271 for marked limitation of motion of the ankle for the entire period on appeal. The Board notes that 20 percent is the maximum rating authorized under Diagnostic Code 5271 for limitation of motion of an ankle joint. 38 C.F.R. § 4.71a. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, as the Veteran is already in receipt of the maximum schedular rating under DC 5271, the new regulation changes are not applicable. Other diagnostic codes evaluating the ankle were not affected by the new musculoskeletal regulations. Notwithstanding the above, the Board has also considered Diagnostic Code 5270, which may provide a basis for higher evaluations for the ankle. Under 38 C.F.R. § 4.71a, a disability rating in excess of 20 percent will be warranted for an ankle disability when there is ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, (30 percent disabling under Diagnostic Code 5270); or ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity (40 percent disabling under Diagnostic Code 5270). Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). Here, the Board finds that ankylosis of the left ankle has not been shown. At a May 2017 VA examination the Veteran reported pain, weakness and frequent falls. Range of motion revealed dorsiflexion to 20 degrees and plantar flexion to 15 degrees. It was noted that the Veteran was not being tested during a flareup. Muscle strength testing was slightly reduced on the left side. There was no ankylosis found. The Court noted inadequacies in the examination, and an additional examination was obtained in March 2021. It was noted that the Veteran was not able to perform repetitive-use testing with at least three repetitions and there was significant pain on initial range of motion testing. The examiner estimated that range of motion of his joint during a flare-up would result in plantar flexion to 5 degrees and dorsiflexion to 5 degrees. Specifically, it was noted that there was no ankylosis. The Board notes that normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The range of motion findings exhibited by the Veteran are inconsistent with a finding of ankylosis, or “immobility and consolidation” of the left ankle joint. Moreover, the VA examiners throughout the period on appeal have observed no joint ankylosis of the Veteran’s left ankle. Accordingly, the Board finds that the provisions of Diagnostic Code 5270 pertaining to ankylosis are not for application. Notwithstanding the above, the Board has also considered other potentially applicable Diagnostic Codes that may provide a basis for separate evaluations for the left ankle. Since ankylosis has not been shown, the provisions of Diagnostic Code 5272, which govern ankylosis of the subastragalar or tarsal joint, are likewise not applicable to the current claim. Additionally, with regard to Diagnostic Code 5273, malunion of the os calcis or astragalus has not been demonstrated. Finally, with regard to Diagnostic Code 5274, the medical evidence is without complaints of or treatment for an astragalectomy of the left ankle, which involves removal of the ankle bone. As such, a rating under this provision is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5274. In conclusion, the Board finds that the Veteran’s left ankle disability, which has been manifested by painful motion, more nearly approximates the rating criteria for a 20 percent rating for marked limitation of motion under Diagnostic Code 5271. Further, the Board finds that the clinical evidence, as detailed above, does not show distinct time periods where a rating in excess of 20 percent is warranted. Consequently, the Board finds that the currently assigned 20 percent rating throughout the rating period on appeal appropriately reflects the clinically established impairment experienced by the Veteran. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to TDIU. The Veteran, through his representative, has indicated that the Veteran’s left ankle impacts his ability to work. See June 2020 JMPR. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. The Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record and is properly before the Board by virtue of the Veteran’s increased rating claim pursuant to Rice. Veterans Claims Assistance Act of 2000 (VCAA) notice should be provided to the Veteran. Further development is necessary prior to adjudication of this claim and it is therefore remanded. The matters are REMANDED for the following action: (Continued on the next page)   Provide the Veteran with notice in compliance with the VCAA that notifies him of what evidence he must show to support a claim for a TDIU. A.M. CLARK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.