Citation Nr: 21025304 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 10-36 890 DATE: April 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for post-concussive headaches prior to October 23, 2008, and to a rating in excess of 30 percent thereafter is denied. Entitlement to an initial disability rating in excess of 10 percent for a left ankle sprain is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss disability had its onset in service or manifested to a compensable degree within the applicable presumptive period; or that there is continuity of symptomatology; or that the disability is otherwise etiologically related to in-service injury or disease. 2. Prior to October 23, 2008, the Veteran did not have characteristic prostrating headaches which averaged at least one in 2 months over a period of several months and since that time he has had characteristic prostrating attacks once every month but not prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran’s left ankle sprain has been manifested by pain, slight instability, and only minimal limitation of motion during flareups and repetitive use over time, i.e., with only a 5 degree loss of motion in dorsiflexion and plantar flexion. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for an initial disability rating in excess of 10 percent for post-concussive headaches prior to October 23, 2008, and to a rating in excess of 30 percent thereafter have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, Diagnostic Code 8100. 3. The criteria for an initial disability rating in excess of 10 percent for a left ankle sprain have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to October 1988; from August 2004 to August 2006; from October 2012 to September 2013; from December 2013 to September 2014; from January 31, 2015 to September 13, 2015; from March 9, 2018 to July 3, 2018; from February 1, 2019 to September 30, 2019; and from July 1, 2020, to September 30, 2020. The Veteran served in Southwest Asia and was awarded the Combat Infantryman Badge and Bronze Star Medal, among other decorations These matters come before the Board of Veterans’ Appeals (Board) from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office. In January 2015 the Board denied an initial rating in excess of 10% for tinnitus and remanded claims for service connection for cervical spine disability; an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression; bilateral hearing loss; a lumbar spine disability; a bilateral hip disability; a bilateral knee disability; a bilateral shoulder disability; and remanded claims for an initial disability rating in excess of 10 percent for post-concussive headaches and a compensable initial disability rating for a left ankle sprain. The Board again remanded those claims in February 2017. A November 2020 rating decision granted service connection for the following: degenerative arthritis of the cervical spine; left shoulder rotator cuff tendonitis and acromioclavicular (AC) joint osteoarthritis; right shoulder rotator cuff tendonitis and AC joint osteoarthritis; lumbosacral spine degenerative arthritis; left hip osteoarthritis; left knee degenerative arthritis; right hip osteoarthritis; right knee degenerative arthritis; left hip osteoarthritis, limitation of abduction, adduction, and rotation; left hip osteoarthritis, limitation of flexion; right hip osteoarthritis, limitation of abduction, adduction, and rotation; right hip osteoarthritis, limitation of flexion. All grants were made effective August 26, 2006. That rating decision also retroactively increased the noncompensable disability rating for a left ankle sprain to 10%, effective August 26, 2006. This resulted in a combined disability rating of 80% from August 26, 2006, and 90% from March 3, 2018. A January 2021 rating decision granted service connection for PTSD. It also assigned a separate evaluation of 70% for traumatic brain injury (TBI) effective October 23, 2008. It granted special monthly compensation (SMC) based on housebound (HB) criteria from September 14, 2015 to November 1, 2015; and granted basic eligibility to Dependents' Educational Assistance (DEA) from August 26, 2006. That rating also increased the 10 % rating for post concussive headaches to 30% effective October 23, 2008. This resulted in a combined schedular evaluation of 100% since August 26, 2006. Also granted was entitlement to SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) on account of PTSD rated 100% additional service-connected disabilities of traumatic brain injury, independently ratable at 60% or more from September 14, 2015 to November 1, 2015. The grants of service connection for multiple disabilities by the ratings of November 2020 and January 2021 are full grants of the service connection claims remanded by the Board in 2015 and 2017. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (a grant of service connection extinguishes appeals before the Board). As such, there is no remaining allegation of error of fact or law for appellate consideration. Also, the Veteran has not appealed either the initial ratings assigned or the effective dates and, so, these downstream elements are not in appellate status. In this regard, a January 2021 Supplemental Statement of the Case (SSOC) additionally addressed entitlement to an evaluation greater than 70% for TBI from October 23, 2008. The 70% award for TBI was adjudicated in the January 2021 rating, as to which the Veteran has not initiated an appeal. An appeal consists of a timely Notice of Disagreement (NOD) submitted in accordance with the provisions of § 19.21 and either § 19.52(a) or § 20.501(a) of Title 38 of the Code of Federal Regulations, as applicable and, after a Statement of the Case (SOC) has been furnished, a timely Substantive Appeal. 38 C.F.R. § 19.20. Here, as stated, VA has not received a NOD on the January 2021 rating decision as to this issue. The Board does not have jurisdiction of this matter. The issuance of an SSOC does not vest the Board with jurisdiction as to any new issue. Indeed, the RO is only to issue an SSOC on material changes in or additions to the information included in the SOC and may not be used to announce decisions by the RO on issues not previously addressed in the SOC. See 38 C.F.R. § 19.31. Thus, the Board lacks jurisdiction over this matter---there is simply no claim or controversy and no appeal. Entitlement to service connection for bilateral hearing loss The Veteran, and his representative, contend that his present hearing loss disability is due to military noise exposure, and specifically from hazardous noise exposure during his combat military service in the Persian Gulf. As an initial matter, the Board notes that the Veteran's DD Form 214 for his service in 2005 and 2006 reflects a military occupational specialty listed as infantryman and, thus, his combat status and inservice noise exposure is conceded. The Board concludes that, while the Veteran has a hearing loss disability, it does not meet the definition of a hearing loss as defined by VA at 38 C.F.R. § 3.385 and, so, the preponderance of the evidence is against finding that his bilateral hearing loss disability had its onset in service or manifested to a compensable degree within the applicable presumptive period; or that there is continuity of symptomatology; or that the disability is otherwise etiologically related to in-service injury or disease, to include in-service noise exposure. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi. 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For recognized chronic diseases, listed at 38 C.F.R. § 3.309(a), and including organic diseases of the nervous system (e.g. sensorineural hearing loss), service incurrence or aggravation may be established if manifested to a compensable degree within one year following service under 38 U.S.C. §§ 1110, 1112, 1131, 1137 and 38 C.F.R. § 3.307(a)(3), 3.309(a) or under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dbs) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 dbs or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) provide that if a veteran engaged in combat during active service, lay or other evidence will be considered sufficient proof of the service events in combat, if consistent with the circumstances, of service, even if there is no official record of such incurrence during service; however, this does not create a presumption of service connection and competent evidence of a current disability and of a link between the current disability and service is still required. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 507-13 (1995); see also Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). It is noted that the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. Reasonable doubt will be favorably resolved but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). Background Audiometric testing at a May 1980 enlistment examination, in December 1986, in October 1988, in October 1992, in March 1999, and in September 2003 revealed that thresholds levels were all 20 decibels or less at the relevant frequencies in each ear. An October 2005 STR shows that after being exposed to an IED blast, and the original assessment was decreased hearing due to an IED concussion. Two weeks later he complained of progressive left ear pain and decreased hearing. On examination there was no abnormality of his tympanic membranes. The assessment was barotrauma with subjective hearing loss. Records of the Mercy Ear, Nose, and Throat Clinic show that in November 2006 the Veteran was evaluated for bilateral otalgia and noise exposure. He felt that his hearing has slightly decreased. Audiometric testing revealed that thresholds levels were all 25 decibels or less at the relevant frequencies in each ear and discrimination ability was 100% in each ear. The assessment was that hearing acuity was within normal limits in the left ear but there was a slight sensorineural hearing loss in the right ear from 250 to 1,000 Hertz, but within limits from 2,000 to 8,000 Hz. After a physical examination the assessments were a history of noise exposure, with only a mild low frequency loss; and bilateral ear pain, probable intermittent eustachian tube dysfunction, most likely secondary to chronic rhinitis. A November 17, 2006 letter from a physician, T. Peacock, of the Mercy Clinics, Inc., states that, in part, the Veteran had symptoms of post concussive ear trauma. When seen in January 2007 the assessments included post concussive hearing loss. In a January 30, 2007 letter that physician stated in Iraq in the previous year the Veteran had been exposed to explosive devices resulting in chronic tinnitus and ear pain. It was reported that an “ENT exam” by another physician of the Mercy Ear, Nose, and Throat Clinic had revealed a mild low frequency hearing loss and bilateral ear pain. In a letter dated June 20, 2007, the Veteran related his participation in combat incidents in which he was exposed to small arms fire and explosions in Iraq. Audiometric testing in April 2014 revealed that thresholds levels were all 35 decibels or less at the relevant frequencies and thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were not 26 decibels or greater. A report of a July 2014 evaluation by Dr. T. Roberson of the Virginia Ear, Nose and Throat Associates, for a complaint of vertigo, reflects that audiometric testing revealed normal hearing. The report of that testing was not attached, and the actual threshold levels were not reported. On official audiology evaluation on June 30, 2020, the examiner reported reviewing prior audiograms. Puretone audiometric testing at the 2020 examination revealed that in the range of frequencies from 500 to 4,000 Hertz (Hz) all threshold levels, in decibels (dbs) were less than 40 dbs. in each ear, but at 3,000 Hz the Veteran’s thresholds were 30 dbs in the right ear and 35 dbs in the left ear, and at 4,000 Hz it was 30 dbs in the left ear. This does not meet the criteria for hearing loss in either ear by VA standards. Discrimination ability was 94% in the right ear and 84% in the left ear. However, while the examiner reported that puretone test results are valid for rating purposes and the appropriateness of word recognition scores (which yield discrimination scores) was appropriate with respect to the right ear, the word recognition score was not appropriate as to the left ear because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. The diagnosis was that the Veteran had a bilateral sensorineural hearing loss in frequency range of 500 - 4000 Hz, and that the Veteran might have had a significant changes in hearing thresholds in service, but it did not meet the criteria to be considered a disability for VA purposes, observing that a significant change in hearing thresholds might indicate noise exposure or acoustic trauma. The examiner noted that an extensive review of the electronic claim file showed that the Veteran had had a long career in the reserves, with multiple periods of active service. He had reported exposure to mortar blasts, rockets, improvised explosive devices (IEDs), jets, and helicopter noise and, so, exposure to hazardous noise was conceded. As to the Veteran’s right ear it was reported that there was not a permanent positive threshold shift, i.e., worse than the reference threshold, greater than normal measurement variability at any frequency between 500 and 6,000 Hz. It was stated that a hearing loss of the right ear, if present, was at least as likely as not caused by or a result of an event during service. The rationale was that the current examination found a hearing loss in the right ear at 3,000 Hz. Audiograms surrounding active duty periods were reviewed but there was an absence of significant positive permanent threshold shifts. Although hearing loss was noted in the right ear on the current examination, audiograms during service were negative for hearing loss of the right ear. It was opined that it was less likely than not that Veteran’s “left” ear hearing loss was due to an event in service. As to the Veteran’s left ear, an unlike the right ear, it was reported that there was a permanent positive threshold shift, i.e., worse than the reference threshold, greater than normal measurement variability at any frequency between 500 and 6,000 Hz. It was stated that a hearing loss of the left ear, if present, was at least as likely as not caused by or a result of an event during service. The rationale was that the current examination found a hearing loss in the left ear at 3000 Hz and 4000 Hz. Audiograms surrounding active duty periods were reviewed. A significant threshold shift was noted at 3000 Hz and 4000 Hz. Hearing loss was noted at 3000 Hz and 4000 Hz on an audiogram dated in 2014. It was at least as likely as not that Veterans left ear hearing loss was due to an event in service. Analysis Here, the January 2007 opinion of Dr. Peacock that the Veteran had a post concussive hearing loss weighs in favor of the claim. However, properly interpreted, the opinion of the VA June 2020 examining audiology weighs against the claim, for reasons which will be explained. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a clinician a basis for his or her medical opinion goes to the weight or credibility of the evidence. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The audiometric testing from 1988 to 2020 revealed some fluctuations in threshold levels in each ear. However, the June 2020 VA audiology examination revealed that puretone threshold levels did not meet the VA standard for a hearing loss in either ear. Dr. Peacock’s opinion that the Veteran had a hearing loss did not include the results of puretone audiometry or discrimination ability (based on word recognition scores) which would establish that the Veteran met the criteria for a hearing loss under VA standards, as set forth in 38 C.F.R. § 3.385. While the examining 2020 VA audiologist indicated that the Veteran had a hearing loss, which at least in the left ear, was related to military acoustic trauma, in properly reading that opinion it was concluded that the Veteran did not meet the criteria for a hearing loss under VA standards in either ear. The remaining portion of the examination stating that a hearing loss in the left ear was related to military service could only have been referencing any possible hearing loss which did not meet VA standards. This is because the puretone audiometric test results at that time did not meet the VA standard in the left ear and the discrimination ability (based on word recognition scores) of 84% in the left ear was not appropriate for use in evaluating hearing acuity in the left ear. This is not to say that the Veteran was not exposed to acoustic trauma during service, inasmuch as he certainly was, or that he does not now have some degree of hearing loss. Rather, the Board’s determination is, simply, that the Veteran does not have hearing loss which meets the standard at 38 C.F.R. § 3.385 and, accordingly the Board must conclude that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a specific diagnostic code, the higher is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. A higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria and the ameliorative effects of medication must be discounted when assigning an evaluation. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) and McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an initial disability rating in excess of 10 percent for post-concussive headaches prior to October 23, 2008, and to a rating in excess of 30 percent thereafter The Veteran’s headaches are post concussive in etiology. Under 38 C.F.R. § 4.124A, Diagnostic Code 8045, in rating subjective symptoms as residuals of traumatic brain injury (TBI), separately evaluate any residuals with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. The regulations creating this method of evaluating TBI became effective October 23, 2008. As noted, the Veteran is separately assigned a 70% schedular rating under Diagnostic Code 8045, but that evaluation is not part of this appeal. Thus, the Veteran’s post concussive headaches are rated under 38 C.F.R. § 4.124A, Diagnostic Code 8100, as migraine headaches. Diagnostic Code 8100 provides for a 50% rating for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30% rating is assigned when there are characteristic prostrating attacks occurring on an average once a month over the last several months. A 10% rating is assigned with characteristic prostrating attacks averaging one in 2 months over the last several months. A noncompensable rating is assigned for less frequent attacks. Under Diagnostic Code 8100 “migraines include more than just headaches [and] everything the veteran experiences [is considered with respect to] the frequency, duration, severity, and economic impact of those symptoms” or, in other words, “the overall functional impairment, rather than a demonstration of particular symptoms.” Holmes v. Wilkie, No. 19-2495, slip op. at 7 (U.S. Vet.App. Nov. 25, 2020) (precedential panel decision). The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. Diagnostic Code 8100 does not define “economic inadaptability. However, a headache disorder need only be “capable of producing” economic inadaptability, and does not require a complete inability for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004) (noting that this standard is different from the “unemployability” standard applicable in the context of determining entitlement to a total disability rating based on individual unemployability (TDIU)). Background An October 2005 STR shows that the Veteran was exposed to an IED blast. An October 24, 2006, VA outpatient treatment (VAOPT) record shows that the Veteran complained of having headaches every 2 to 3 days and increased in frequency in cold weather. He rated that headaches as being 3 on a scale of 10 (3/10). A November 17, 2006 letter from a physician, T. Peacock, of the Mercy Clinics, Inc., states that, in part, the Veteran had symptoms of post concussive headaches. When seen in January 2007 he complained of headaches. In a January 30, 2007 letter that physician that in Iraq in the previous year the Veteran had been exposed to explosive devices causing, in pertinent part, post concussive headaches. A June 3, 2020 VAOPT record shows that the Veteran reported having headaches several times a week. A traumatic brain injury examination was done on October 9, 2020 and the examiner diagnosed traumatic brain injury and post concussive headaches as a residual attributable to traumatic brain injury. An official Headache Disability Benefits Questionnaire (DBQ) of December 8, 2020 reflects that the Veterans records were reviewed and that the diagnosis was post concussive headaches. The Veteran reported having debilitating headaches about once a month. Storms, air pressure changes, higher altitudes would cause an increase in pressure, although there were only 7 days in a month in which he did not have headaches. He related that when his neck became stuck, upon turning his neck, he developed severe headaches severe for some minutes, and then a dull headache rest of the day. In describing his headaches, the Veteran reported that the typical duration was less than one day, during which he had constant pulsating or throbbing pain on both sides of his head, which was worse with physical activity. He would also experience nausea, as well as sensitivity to light and sound. The examiner reported that the Veteran had characteristic prostrating attacks once every month, but he did not have very prostrating and prolonged attacks productive of severe economic inadaptability. However, the condition did impact his ability to work. He was a military contractor and had lost 2 to 4 weeks of work in the last 12 months, and reported that when he had bad headaches, he would leave work early and this affected his productivity. Analysis In this case, prior to the December 8, 2020 headache examination the evidence simply did not establish that the Veteran had characteristic prostrating headaches which averaged at least one in 2 months over a period of several months. Accordingly, prior to the pertinent revision of the Rating Schedule, on October 23, 2008, the evidence did not establish that the Veteran met the criteria for a disability evaluation in excess of 10%. As to the level of disability since October 23, 2008, the December 8, 2020 official headache examination clearly establishes that the Veteran reported having debilitating headaches about once a month, and the examiner stated that the Veteran had had characteristic prostrating attacks once every month. This meets the criteria for a 30% rating, but the examiner also stated that the Veteran did not have very prostrating and prolonged attacks productive of severe economic inadaptability, as required for the next higher disability evaluation of 50%. This is in keeping with the examiner’s explanatory report that while the headaches impacted the ability to work, the Veteran had lost no more than 2 to 4 weeks of work in the last 12 months. The Veteran’s subjective complaints and history align with this. Accordingly, since the pertinent revision of the Rating Schedule, on October 23, 2008, the preponderance of the evidence is against finding that the Veteran has met the criteria for a disability evaluation in excess of 30%. Entitlement to an initial disability rating in excess of 10 percent for a left ankle sprain Ratings for a joint based on limitation of motion require consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. In other words, ratings based on limited motion do not ipso facto include or subsume the other rating factors in §§ 4.40 and 4.45, e.g., pain, functional loss, fatigability, and weakness. Thus, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Also, with any form of arthritis, painful motion is factor to be considered. Painful motion of a joint with periarticular pathology is to be at rated at least at the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-86 (1997); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); and Burton v. Shinseki, 25 Vet. App. 1, 5-6 (2011). However, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. A higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria and the ameliorative effects of medication must be discounted when assigning an evaluation. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) and McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis, provides that degenerative arthritis is rated on the basis of limitation of motion under appropriate diagnostic codes for the specific joint or joints involved, but that when limitation of motion of the specific joint is noncompensable, a 10 percent rating is warranted for limitation of motion of a major joint or group of minor joints. With X-ray evidence of arthritis of two or more joint groups without compensable limitation of motion a single disability evaluation of 10 percent may be assigned. Where, however, the limitation of motion of a specific joint or joints involved is noncompensable under the code for rating based on limited motion, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran’s disability was and is currently rated under Diagnostic Code 5271. Under 38 C.F.R. § 4.71a, Diagnostic Code 5271 a 10% rating is warranted for moderate limitation of motion of an ankle and a 20% rating is warranted for marked ankle limitation of motion. Previously, the terms "moderate," and "marked" were not defined in the Rating Schedule, but the Rating Schedule does show that for the ankle the normal range of plantar flexion is from 0 to 45 degrees, and the normal range of dorsiflexion is from 0 to 20 degrees. 38 C.F.R. § 4.71a, Plate II. During the pendency of the appeal, the rating 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). However, the only relevant changes made by the revised criteria were to provide describe the ranges of ankle motion in plantar flexion and dorsiflexion which constitute moderate and marked limitation of ankle motion. Specifically, there is moderate limitation when ankle dorsiflexion is less than 15 degrees or plantar flexion is less than 30 degrees, and there is marked limitation of motion when there is less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. Background During military service, in May 2006, the Veteran has a left ankle sprain when he inverted his left ankle. X-rays in June 2018 of the left ankle, compared with an X-ray in June 2015, revealed chronic posttraumatic changes with interval increase in size and number of likely loose intra-articular bodies within the posterior joint space. A March 2020 VAOPT record shows that when the Veteran had a chiropractic consultation for neck and low back pain he had an examination which revealed full strength, sensation, and reflex function of both lower extremities. Another VA clinical record of that month revealed that he used a cane because of a longstanding right lower extremity gait abnormality, but left ankle x-rays revealed a fracture of the os trigonum of indeterminate age. As explained in the 2015 Board remand, the Veteran did not attend prior examinations which were scheduled to evaluate his left ankle disability. His only official VA examination of his left ankle was in October 2020. The October 2020 VA examination reflects that the Veteran’s electronic claim file was reviewed, and that current X-rays revealed no evidence of fracture or other significant bone or soft tissue abnormality, and there was no significant radiographic evidence of arthritis. It was noted that he had had swelling when he had initially sprained his left ankle. He had received physical therapy. He reported having pain at the medial and lateral aspects of the left ankle. Limitations as to standing, walking, and movements impacted his ability to perform occupational functioning and ordinary activities. He reported having daily flareups of the left ankle which lasted all day and were mild to moderate. Flareups were precipitated by standing and alleviated by sleeping. On physical examination the Veteran had normal range of motion of each ankle, with dorsiflexion to 20 degrees and plantar flexion to 45 degrees, with pain in each plane but which did not result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of joints or associated soft tissues of either ankle. The Veteran was able to repetitive use testing of each ankle with at least three repetitions of motion without any loss of function or range of motion. As to his left ankle, he was examined immediately after repetitive use over time, and pain significantly limit functional ability with repeated use over a period of time. Specifically, dorsiflexion was limited to 15 degrees and plantar flexion was to only 40 degrees (a loss of 5 degrees of motion in each plane). He was not examined during a flareup, but the examiner estimated that pain significantly limit functional ability during a flareup, with dorsiflexion limited to 15 degrees and plantar flexion to only 40 degrees (again, a loss of 5 degrees of motion in each plane). Strength was normal in each ankle in plantar flexion and dorsiflexion, and there was no muscle atrophy. He had ligamentous instability of only the left ankle on Anterior Drawer testing. He occasionally used a cane as an ambulatory aid, but this was due to right knee pain and assist in balance. There was no evidence of pain on passive range of motion testing or on non-weight bearing testing of each ankle. His left ankle disorder impacted his ability to perform occupational tasks because of instability and pain with weight-bearing. Analysis In this case the Veteran has normal range of motion of the left ankle, and even after repetitive use. His report of pain and instability, as well as the only minimal limitation of motion during flareups and after repetitive use over time, i.e., with only a 5 degree loss of motion in dorsiflexion and plantar flexion, are encompassed in the 10% rating currently assigned. The Veteran’s left ankle disability is not demonstrated to be of such severity as to more closely approximate the criteria for a 20% rating, which would require marked limitation of motion. Specifically, even during flareups and after repetitive use over time he still has three fourths of normal dorsiflexion and almost full plantar flexion. The Board acknowledges the Veteran's lay reports of symptoms and that there was additional functional loss due to pain, and pain during flareups. However, upon consideration of the record, the Board finds that the disability picture of the left ankle disability has been manifested by no more than moderate limitation of motion with pain. In this regard, the Board notes that under 38 C.F.R. § 4.71a, Diagnostic Code 5270 ankylosis of an ankle in plantar flexion of less than 30 degrees would also warrant a 20% rating. Ankylosis is a stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). However, the evidence is clear that the Veteran does not have such impairment as to equate with or be the functional equivalent of actual ankylosis. Thus, as to the matter of ankylosis of the left ankle, there being no evidence of functional impairment, e.g., during flareups, which equates to ankylosis the rating factors enumerated in 38 C.F.R. §§ 4.40, 4.45 are not for application. See generally Chavis v. McDonough, No. 18-2928, slip op. at 11 (U.S. Vet.App. Apr. 16, 2021) (precedential panel decision) (holding that evidence of functional equivalent of ankylosis during a flare-up requires consideration of rating factors in 38 C.F.R. §§ 4.40 and 4.45 but not if there is no such evidence, citing Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) and Spencer v. West, 13 Vet. App. 376, 382 (2000)). Both the lay and medical evidence are probative here. However, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. The Board has considered whether a higher disability evaluation is available under any other potentially applicable provision of the Rating Schedule. However, a higher evaluation is not warranted based on any other provision of the Rating Schedule. The evidence does not demonstrate that there has been any significant fluctuation in the severity or functional impact of the Veteran’s left ankle disability. Thus, there is no basis to stage the rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson v. West, 12 Vet. App. 119, 126 (1999). There is no doubt to resolve. 38 U.S.C. § 5107(b) and 38 C.F.R. § 4.3. Accordingly, a rating in excess of 10 percent for left ankle disability is denied. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.