Citation Nr: 21025393 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 13-01 131 DATE: April 28, 2021 ORDER Entitlement to a 20 percent rating for tendonitis of the left ankle is granted. REMANDED Entitlement to a rating in excess of 10 percent for epicondylitis of the left elbow is remanded. FINDING OF FACT Throughout the appellate period, the Veteran’s tendonitis of the left ankle has at times manifested as a marked limitation of motion. CONCLUSION OF LAW The criteria for a rating of 20 percent for tendonitis of the left ankle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to August 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in August 2016. A transcript of such is associated with the electronic claims file. The Board issued a prior remand on these issues in September 2017 and a decision in February 2020. However, following an appeal to the United States Court for Appeals for Veterans Claims (Court), in November 2020 a Joint Motion for Partial Remand (Joint Motion) was entered, vacating portions of the Board’s February 2020 decision. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 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). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a 20 percent rating for tendonitis of the left ankle. The Veteran was granted service connection for tendonitis of the left ankle in a March 1999 rating decision, effective September 1, 1999, evaluated at 10 percent. In March 2009, the Veteran requested an increased rating for his left ankle condition. Normal plantar flexion of an ankle is to 45 degrees and normal dorsiflexion is to 20 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran’s left ankle tendonitis is rated under DC 5271 for limitation of motion of the ankle. Prior to February 7, 2021, pursuant to DC 5271, moderate limitation of motion of the ankle is evaluated at 10 percent and marked limitation of motion of the ankle is evaluated at 20 percent. The Board notes that terms such as “moderate” and “marked” were not previously defined in the Rating Schedule. However, “moderate” is defined as “of average or medium quality, amount, scope, range, etc.” See Webster’s New World Dictionary, Third College Edition (1988) at 871. The Board also notes that beginning February 7, 2021, DC 5271 was revised to clarify that a moderate limitation of motion of the ankle was less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and a marked limitation of motion of the ankle was less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Veteran was given a VA examination for his left ankle in May 2009. Here, the examiner diagnosed him with DJD of the left ankle with prior fracture. The examiner noted that all motion of the left ankle appeared pain free. Extension was noted to be to the neutral point of 0 degrees, but the Veteran could not dorsiflex his ankle beyond the neutral point. Planter flexion was to 45 degrees and inversion and eversion were to 5 degrees each, with pain noted on eversion. The Veteran’s range of motion was not additionally limited following repetitive use, but he was found to be tender over the medial and lateral aspects of the ankle joint. The Veteran reported that he did not feel his ankle affected him in his work activities, but that in his daily living he has curtailed his walking and is no longer able to play golf. Following additional evidence from physical therapy, in a June 2009 rating decision the RO continued to evaluate the Veteran’s left ankle tendonitis at 10 percent, as records showed only moderate limitation of motion (dorsiflexion to 3 degrees, plantar flexion to 20 degrees), with tenderness noted over the distal medial malleolus at the deltoid ligament. The Veteran was given another VA examination for his ankle in October 2012. Here, the examiner diagnosed a left ankle sprain and found his plantar flexion to be to 40 degrees and his plantar dorsiflexion to be to 20 degrees or greater with no objective painful motion. However, pain on movement and palpitation was noted. The examiner opined that the Veteran’s ankle condition did not impact his ability to work. This claim was appealed up to the Board and in September 2017, the Board issued a remand instructing the RO to obtain another VA examination for the Veteran’s left ankle. The Veteran was given this examination in February 2018. Here, the examiner diagnosed the Veteran with tendonitis of the left ankle and noted that the Veteran reported pain in the left ankle some of the time. The examiner found the Veteran’s left ankle dorsiflexion to be to 10 degrees, and his plantar flexion to be to 20 degrees, with no pain noted on exam. The examiner found no impact on the Veteran’s ability to perform any type of occupational tasks and noted no pain on passive range of motion or on weight-bearing of the left ankle. Based on this evidence, the Board issued a February 2020 decision denying a rating in excess of 10 percent for the Veteran’s tendonitis of the left ankle. However, as noted above, in November 2020 the Court issued a Joint Motion finding that the Board “erred when it provided an inadequate statement of reason or bases for its finding that an evaluation in excess of 10% was not warranted for tendonitis of the left ankle.” The Court specifically noted that the Board did not discuss how it defined the terms “moderate” or “marked” as they are used in DC 5271. As explained above, on February 7, 2021 DC 5271 was revised to clarify that a moderate limitation of motion of the ankle was less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and a marked limitation of motion of the ankle was less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Based on these new moderate and marked definitions, the Board finds that the Veteran’s left ankle dorsiflexion at both his May 2009 VA examination and on his June 2009 physical therapy records met the criteria for marked limitation of motion. Accordingly, entitlement to a 20 percent rating for tendonitis of the left ankle is granted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for epicondylitis of the left elbow is remanded. In the November 2020 Joint Motion, the Court found that the Board “erred in failing to ensure that VA complied with the terms of the September 2017 remand order relating to procuring an examination of the left elbow.” Specifically, the Court noted that despite obtaining a new examination in February 2018 that the examiner did not state where the pain began in the elbow in terms of range of motion. Accordingly, the claim must be remanded again to provide the Veteran with another examination for his left elbow. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Schedule a new examination to evaluate the severity of the Veteran’s epicondylitis of the left elbow. The claims folder must be made available to and be reviewed by the examiner. The examiner should note in the examination report that the claims folder has been reviewed. All indicated studies, including x-rays should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) in accordance with the 2020 Joint Motion for Remand. The examiner should record the results of range of motion testing for pain on active motion, passive motion, weight-bearing, and non-weight-bearing in light of Correia. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.