Citation Nr: 21025169 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 10-06 336 DATE: April 27, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for left ankle tendinosis is denied. Entitlement to a disability rating in excess of 20 percent for right ankle tendinosis is denied. A separate 10 percent rating is granted for left ankle instability is granted. A separate 10 percent rating is granted for right ankle instability is granted. FINDINGS OF FACT 1. The Veteran's left ankle disability is manifested by marked limitation of motion, but not ankylosis. 2. The Veteran’s right ankle disability is manifested by marked limitation of motion but not ankylosis. 3. The Veteran’s left ankle disability is manifested by slight instability. 4. The Veteran’s right ankle disability is manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left ankle tendinosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2020). 2. The criteria for a rating in excess of 20 percent for right ankle tendinosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2020). 3. The criteria for a separate 10 percent rating, but no higher, for left ankle instability, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 5262 (2020). 4. The criteria for a separate 10 percent rating, but no higher, for right ankle instability, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 5262 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1982 to July 1992. This case was previously remanded for additional development in June 2017 and May 2019. Increased Rating Disability ratings are determined by applying the criteria set forth in the 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. See 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. See 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. See 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. See 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits as well as the entire history of his disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 1. Entitlement to a disability rating in excess of 20 percent for left ankle tendinosis 2. Entitlement to a disability rating in excess of 20 percent for right ankle tendinosis with instability The current increased rating claim was received in January 2010. A May 2013 rating decision granted 10 percent ratings based on painful motion of each ankle. A November 2018 Supplemental Statement of the Case granted a 20 percent rating for each ankle from January 2010. During the pendency of the appeal, the criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 C.F.R. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 C.F.R. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5271 provided that a 10 percent rating was assigned for moderate limitation of motion. A 20 percent (maximum schedular) rating was assignable for marked limitation of motion. The rating criteria provide that normal dorsiflexion of the ankle is to 20 degrees. A rating higher than 20 percent for the ankle was assigned for ankylosis of the ankle. See Diagnostic Code (DC) 5270-5274. The rating criteria in effect prior to February 7, 2021 provide that a rating in excess of 20 percent is also available under DC 5262 for marked ankle disability, where there is also malunion of the tibia or fibula. Under DC 5262, impairment of the tibia and fibula with malunion was rated as 10 percent for slight knee or ankle disability, 20 percent for moderate knee or ankle disability, and 30 percent for marked knee or ankle disability. A 40 percent rating is assignable for nonunion of the tibia and fibula, with loose motion, requiring a brace. The revised criteria provide that a 10 percent rating is warranted for moderate limitation of motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). A 30 percent rating is assigned for ankylosis, in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between 0 degrees and 10 degrees. Under the revised criteria, Diagnostic Code 5262 provides that impairment of the tibia and fibula with malunion is evaluated under diagnostic codes 5256, 5267, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Prior to the regulatory change, the evidence does not show ankylosis of either ankle. A May 2010 VA examination showed plantar flexion to 45 degrees and dorsiflexion to 20 degrees. The examiner diagnosed bilateral ankle sprains with instability. A May 2012 VA examination reflects that the Veteran reported chronic lateral ankle pain with intermittent swelling bilaterally. Physical examination showed right ankle plantar flexion to 45 degrees with pain at 10 degrees. The Veteran had dorsiflexion of the right ankle to 20 degrees with objective evidence of painful motion at 10 degrees. Examination of the left ankle showed plantar flexion to 45 degrees with painful motion at 30 degrees. The Veteran had left ankle dorsiflexion to 10 degrees. The Veteran did not have additional limitation of motion with repetitive use testing. He had functional loss of the ankle due to pain with movement. There was laxity of both ankles. He wore braces of both ankles. He did not have ankylosis of the talar, subtalar, and/or tarsal joint. VA outpatient treatment records reflect complaints of bilateral ankle pain and instability. An April 2013 VA outpatient treatment record noted the Veteran’s complaint of falls due to unstable ankles. A February 2021 VA examination reflects that the Veteran had plantar flexion of his ankles to 25 degrees and dorsiflexion to 10 degrees. With consideration functional loss due to pain and flare-ups, he had dorsiflexion to 5 degrees and left ankle dorsiflexion to 10 degrees. He did not have ankylosis of either ankle. The examiner diagnosed bilateral ankle tendinosis with instability. The examination noted that the Veteran occasionally uses a brace. In this case, there are no findings of ankylosis of either ankle. VA examinations in May 2010, May 2012, and February 2021 show that ankylosis is not present. The Board notes further that because the Veteran's ankle disabilities are currently evaluated at the maximum rating for limitation of motion, further DeLuca analysis is not required. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. § 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Under DC 5262, as in effect prior to February 7, 2021, impairment of the tibia and fibula, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for malunion of the tibia and fibula with loose motion requiring a brace. Although there is no evidence of malunion or nonunion of the tibia and fibula of either lower extremity, the evidence shows that he has slight instability of both of his ankles throughout the appeal period. A November 2012 VA examination described the instability of the ankles as mild. VA treatment records dated in April 2013 reflect that he was diagnosed with bilateral ankle instability. His November 2021 VA examination showed a diagnosis of bilateral ankle instability. Given the Veteran’s reports and medical evidence indicating ankle instability and falls, the Board finds that separate 10 percent ratings are warranted for slight instability of the left and right ankle by analogy, under DC 5262, separate from his ratings for limitation of motion of his ankles. The Board finds that separate ratings in excess of 10 percent are not warranted because the evidence, and the Veteran’s statements, do not show symptoms of more than slight ankle instability. As noted above, under the revised criteria in effect from February 7, 2021, Diagnostic Code 5262 provides that impairment of the tibia and fibula with malunion is evaluated under diagnostic codes 5270 or 5271 for the ankle, whichever results in the highest evaluation. As there are no findings of ankylosis in the ankles and the Veteran is already rated under Diagnostic Code 5271, a higher rating is not warranted under the revised criteria. In conclusion, the Board finds that the preponderance of the evidence is against a finding that ratings in excess of 20 percent are warranted for the service-connected left and right ankle tendinosis, but separate ratings of 10 percent each are granted for left and right ankle instability. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.