Citation Nr: 21025622 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-22 017 DATE: April 28, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected right wrist disability is denied. Entitlement to an initial 20 percent disability rating, but no higher, for service-connected left ankle disability is granted, effective December 18, 2014 (exclusive of the period for which a temporary total rating was assigned pursuant to 38 C.F.R. § 4.30), subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s right wrist disability has not resulted in ankylosis. 2. The Veteran’s left ankle disability has resulted in a marked impairment of motion, but it has not resulted in ankylosis, malunion of the os calcis or astragalus, or astragalectomy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right wrist disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.159, 4.59, 4.71a, Diagnostic Codes 5214 15 (2020). 2. The criteria for an initial 20 percent rating for a left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.59, 4.71a, Diagnostic Code 5271 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to February 2000, from October 2001 to July 2006, from September 2006 to September 2009, and from December 2009 to December 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Agency of Original Jurisdiction (AOJ) granting service connection for right wrist and left ankle disabilities and assigning initial 10 percent ratings to each disability. This matter was previously before the Board in October 2018, when it remanded the Veteran’s claims in order to obtain additional medical opinions. The Veteran underwent the requested medical examinations in May 2019. The Board finds that there has been substantial compliance with the terms of its October 2018 remand. In October 2018, the Board additionally remanded the issue of service connection for sinusitis. In July 2020, the AOJ granted service connection for a sinus disability. The Board will not further consider this claim for service connection because the AOJ’s rating decision granted the Veteran’s claim in full. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). In May 2016, the Veteran has requested the opportunity to participate in a hearing before the Board. The Veteran, however, failed to appear at hearings scheduled to occur in September 2018 and January 2019. The Board considers the Veteran’s request for a hearing to have been withdrawn because he has failed to report for scheduled hearings, he has not presented good cause for having failed to report, and he has not requested to reschedule the hearing. See 38 C.F.R. §§ 20.703, 20.704. Increased Ratings Increased Rating for a Right Wrist Disability The Veteran’s right wrist disability is rated 10 percent disabling under Diagnostic Code 5215, applicable to limited motion of the wrist. The Veteran claims that his right wrist disability warrants a greater rating. As an initial matter, the Board notes that effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).  These revisions did not, however, change the criteria by which disabilities of the wrist are rated, and the Board will not discussed the revised rating criteria further. A normal range of motion in the wrist is dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I. Handedness for the purpose of a dominance rating is determined by the evidence of record, or by testing on VA examination. 38 C.F.R. § 4.69. Only one hand is considered dominant. The evidence of record, for example, the May 2019 VA examination, establishes that the Veteran is right handed, and as such, the right arm is the Veteran’s major extremity. A limitation of motion of the wrist of the major extremity is rated 10 percent disabling when palmar flexion is limited to a position in line with the forearm, or when dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Favorable ankylosis in 20 degrees to 30 degrees dorsiflexion warrants a 30 percent rating for the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Ankylosis of the wrist in any other position, except favorable, warrants a 40 percent rating for the major extremity. Id. Unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation warrants a 50 percent rating for the major extremity. Id. Extremely unfavorable ankylosis is rated on the basis of a loss of use of the hands. Id. “Ankylosis” is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Turning to the facts in this case, the Veteran was granted service connection as of his separation from service in December 2014. The Veteran’s right wrist disability has been rated 100 percent disabling from March 24, 2015, to May 1, 2015, on the basis of surgical treatment requiring convalescence. The Veteran’s existing 10 percent rating resumed on May 1, 2015. A February 2016 x-ray of the right wrist showed no osseous abnormalities. The Veteran underwent a VA examination in January 2018, at which time the Veteran complained of decreased strength and sharp pains in his right wrist. He reported flare-ups of symptoms with changes in the weather. Range of motion testing showed right palmar flexion to 20 degrees, dorsiflexion to 25 degrees, ulnar deviation to 25 degrees, and radial deviation to 15 degrees. The Veteran had pain with radial deviation, but such pain did not result in a functional loss. The Veteran experienced pain with active and passive motion, and with weight-bearing and non-weight bearing. Repetitive use testing did not result in an additional loss of motion or other functional loss. The examiner was unable to opine whether factors such as pain, weakness, fatigability, or incoordination would limit the Veteran’s functional ability with repeated use over time or with flare-ups. Muscle strength testing showed active movement against some resistance, and the examiner found that the Veteran did not experience a reduction in muscle strength. The Veteran had no muscle atrophy or ankylosis. A January 2018 x-ray of the Veteran’s right wrist was unremarkable. While the Board has included the results of this examination report, in October 2018, the Board noted that the report was inadequate because the examiner did not estimate the additional loss of motion that the Veteran experienced during flare-ups. The Veteran underwent an additional examination in May 2019, at which time the Veteran stated that he experienced constant pain in his right wrist. The Veteran indicated that he last experienced a flare-up approximately one week earlier, with the episode lasting 3 days. During flare-ups, the Veteran stated that he could not grab a door knob. Range of motion testing showed right palmar flexion to 60 degrees, dorsiflexion to 50 degrees, ulnar deviation to 20 degrees, and radial deviation to 15 degrees. The Veteran had pain with all ranges of motion. Repetitive use testing did not result in an additional loss of motion or other functional loss. The Veteran experienced pain with repeated use over time, but this pain did not result in an additional loss of motion. The examiner indicated that the pain associated with flare-ups would result in an additional 50 percent loss of motion, which the Board notes would result in palmar flexion to 30 degrees, dorsiflexion to 25 degrees, ulnar deviation to 10 degrees, and radial deviation to 7.5 degrees. Muscle strength testing was normal, and the Veteran had no muscle atrophy or ankylosis. In a May 2019 neurological examination, an examiner noted that the Veteran did not have any symptoms attributable to a peripheral nerve condition. Muscle strength, reflex, and sensory testing were normal, and Tinel’s sign for median nerve impairment was negative. The Veteran has otherwise sought treatment for right wrist pain throughout the appeal. For example, in May 2016, the Veteran wore a splint on his right wrist and was noted to have some swelling of the wrist. In September 2016, the Veteran stated that he experienced moderate pain in his right wrist with occasional numbness in all fingers, but the Veteran denied experiencing weakness. The clinician diagnosed the Veteran with right wrist pain status-post arthroscopy and repair of the right scapholunate ligament. In July 2019, a clinician noted the Veteran’s complaint that his right wrist hurt “most of the time” and observed that the Veteran had limited flexion and extension of the wrist with decreased supination and pronation. The Veteran’s right upper extremity was otherwise neurovascularly intact. Turning to an analysis of these facts, the Veteran’s right wrist disability is rated 10 percent disabling on the basis of painful motion, which is the maximum rating available on the basis of impaired motion of the wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. A greater rating of the Veteran’s right wrist disability would require a finding that the right wrist was ankylosed, or immobile. No clinician has found the Veteran’s right wrist to be ankylosed at any time, nor has the Veteran sought clinical treatment for immobility of the right wrist. Instead, the record shows that the Veteran has consistently maintained a range of motion in his right wrist, though he experiences pain with such motion. The weight of the evidence does not support a finding that the Veteran’s right wrist has been immobile at any time, even during flare-ups, and a greater rating based upon ankylosis of the wrists is therefore unavailable. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. When, as in this case, the veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis, the regulations pertaining to functional impairment do not apply. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board therefore will not consider functional loss due to factors such as pain and weakness that cause additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Given the Veteran’s occasional complaint of subjective symptoms such as numbness affecting the right wrist, the Board has additionally considered whether a greater rating is available on the basis of neurological impairment. See 38 C.F.R. § 4.124a. A compensable rating based on these criteria requires a finding that the Veteran’s symptoms approximate at least mild incomplete paralysis. No clinician or examiner has suggested that the Veteran’s right wrist symptoms result in mild incomplete paralysis, nor has the Veteran so contended. A rating in excess of 10 percent of the Veteran’s right wrist disability is unavailable based on neurological impairment. In summation, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s right wrist disability. Because the preponderance of the evidence is against a higher rating at any point during the appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for a Left Ankle Disability The Veteran’s left ankle disability is rated 10 percent disabling under Diagnostic Code 5271, applicable to limited motion of the ankle. The Veteran claims that his left ankle disability warrants a greater rating. The Veteran was awarded service connection as of his separation from service in December 2014. In January 2015, the Veteran underwent an extensive surgical debridement of the left ankle in treatment of left ankle arthrosis. The Veteran’s left ankle disability is rated 100 percent disabling from January 21, 2015, to March 1, 2015, on the basis of surgical treatment requiring convalescence. The Veteran’s existing 10 percent rating resumed on March 1, 2015. In September 2015, the Veteran was assessed with a strain of the left Achilles tendon. In February 2016, a clinician noted that the Veteran had -10 degrees of dorsiflexion and 38 degrees of plantar flexion. In April 2016, the Veteran complained of pain and stiffness in his left ankle. Range of motion testing of the left ankle showed -4 degrees of dorsiflexion and 23 degrees of plantar flexion. In May 2016, range of motion testing of the left ankle showed -2 degrees of dorsiflexion and 38 degrees of plantar flexion. In September 2016, the Veteran underwent a surgical procedure to correct the Achilles contracture of his left ankle. The Veteran underwent a VA examination in January 2018, at which time the Veteran complained of pain, stiffness, and impaired sensation in his left ankle. The Veteran stated that he experienced flare-ups of symptoms throughout the day with increased use of the left ankle, and the Veteran indicated that swelling prevented him from wearing certain shoes. The Veteran stated that stiffness of his left ankle prevented him from running. Range of motion testing showed left ankle dorsiflexion to 15 degrees and plantar flexion to 45 degrees. The examiner found that the Veteran’s range of motion was normal for his body habitus, and no pain was noted on examination with active or passive motion. There was pain with weight-bearing and non-weight-bearing. The examiner noted objective evidence of localized tenderness or pain on palpation of the left ankle, with decreased sensation and tingling. The Veteran had crepitus of the left ankle. Repetitive use testing did not result in an additional loss of motion or other functional loss. The examiner was unable to opine whether factors such as pain, weakness, fatigability, or incoordination would limit the Veteran’s functional ability with repeated use over time or with flare-ups. The examiner found that the left ankle showed normal strength for plantar flexion, and dorsiflexion strength showing active movement against some resistance. The Veteran had no muscle atrophy or ankylosis. Joint stability testing was normal. The Veteran had shin splints that affected the range of motion of the left ankle and achilles tendonitis or achilles tendon rupture that resulted in sensory impairment of the left foot and “half of [the] lower leg”. The Veteran did not have malunion of the calcaneus (os calcis) or talus (astragalus), nor had the Veteran undergone a talectomy (astragalectomy). A January 2018 x-ray of the Veteran’s left ankle was normal. While the Board has included the results of this examination report, in October 2018, the Board noted that the report was inadequate because the examiner did not estimate the additional loss of motion that the Veteran experienced during flare-ups. An October 2018 MRI showed marked Achilles tendinosis and flexor hallucis longus tendon transfer to the posterior process of the calcaneus with postoperative fibrosis and edema. In November 2018, a clinician noted the Veteran’s complaints of diffuse tenderness and altered sensation of the posterior ankle. The Veteran’s range of motion was found to have improved. The clinician assessed the Veteran with Achilles tendinopathy of the left ankle. The Veteran underwent an additional examination in May 2019, at which time the Veteran stated that he experienced pain and numbness in his left ankle with standing. Range of motion testing showed that the Veteran had dorsiflexion to 10 degrees and plantar flexion to 20 degrees. The Veteran had pain with all motion and with weight-bearing. Repetitive use testing did not result in an additional loss of motion or other functional loss. The Veteran experienced pain with repeated use over time, but this pain did not result in an additional loss of motion. The examiner indicated that the pain associated with flare-ups would result in an additional 50 percent loss of motion, which the Board notes would result in dorsiflexion to 5 degrees and plantar flexion to 10 degrees. The examiner observed mild swelling of the left lower Achilles tendon, and the left ankle was tender to palpation. Muscle strength testing was normal, and the Veteran had no muscle atrophy or ankylosis. Joint stability testing was normal. The Veteran did not have malunion of the calcaneus (os calcis) or talus (astragalus), nor had the Veteran undergone a talectomy (astragalectomy). The examiner characterized the Veteran’s left ankle disability as “moderately severe” in nature. In a July 2020 addendum, the examiner specifically diagnosed left flexor hallucis longus transfer with lengthening of the left achilles tendon. The examiner found that the Veteran’s disability resulted in a moderate functional limitation. In a May 2019 neurological examination, the Veteran had normal left ankle strength. Deep tendon reflexes of the left ankle were hypoactive. The Veteran’s gait was normal. Turning now to an evaluation of the most appropriate rating for the Veteran’s left ankle disability, Diagnostic Codes 5270 through 5274 address disabilities of the ankle. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).  These revisions affect only one relevant Diagnostic Code in this case: Diagnostic Code 5271, applicable to limited motion of the ankle. VA’s General Counsel has held that when a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran.  In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation.  If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change.  The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.  VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal.  See VAOPGCPREC 32000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).  Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the AOJ.  In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)).  Id. at 1349.  As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Turning now to an evaluation of the Diagnostic Codes potentially applicable to the Veteran’s left ankle disability, Diagnostic Code 5270, applicable to ankylosis of the ankle, and Diagnostic Code 5272, applicable to ankylosis of the subastragalar or tarsal joint, do not apply because the evidence of record does not show ankylosis of the left ankle at any time. Instead, throughout the period on appeal, the Veteran has consistently demonstrated a range of motion in his left ankle, though such motion has been limited by pain. Diagnostic Code 5273, applicable to malunion of the os calcis or astragalus, does not apply because the record contains no evidence of such malunion. Diagnostic Code 5274, applicable to astragalectomy, does not apply because the Veteran has never undergone such a procedure. With these Diagnostic Codes excluded, the Board notes that the Veteran’s left ankle disability is currently rated 10 percent disabling under Diagnostic Code 5271, which, as noted above, was revised effective February 7, 2021. Under the criteria in effect before February 7, 2021, this Diagnostic Code provided for a 10 percent rating for a “moderate” limitation of motion, and a 20 percent rating for a “marked” limitation of motion. 38 C.F.R. § 4.71a. A normal range of motion of the ankle involves dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Id., at Plate II. The words “moderate” and “marked” were not defined in the VA Schedule for Rating Disabilities. Clinicians’ use of such terms, although an element that the Board will consider, is not dispositive of the issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in order to ensure that its decisions are equitable and just. 38 C.F.R. § 4.6. With the February 7, 2021 amendment to Diagnostic Code 5271, a 10 percent rating still applies to a “moderate” limitation of motion, and a 20 percent rating still applies to a “marked” limitation of motion. 38 C.F.R. § 4.71a. The Diagnostic Code now, however, defines these previously-undefined terms. A “moderate” limitation of motion is fewer than 15 degrees of dorsiflexion or fewer than 30 degrees of plantar flexion. A “marked” limitation of motion is less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. Id. Affording the Veteran with the benefit of the doubt, the Board finds that a single 20 percent rating, which is the maximum available rating on the basis of impaired motion of the ankle, is warranted throughout the appeal period. Before his January 2018 examination, the Veteran consistently sought treatment for left ankle stiffness and pain, with clinicians consistently noting the Veteran’s impaired dorsiflexion, including a negative degree of dorsiflexion in his left ankle. While the January 2018 examiner did not find the motion of the left ankle to be so limited, the examiner also failed to discuss the impact of flare-ups and repeated motion over time on the Veteran’s motion. In May 2019, an examiner found that during flare-ups, which the Veteran has endorsed experiencing frequently with increased use of the left ankle throughout the day, the Veteran would experience a limitation of dorsiflexion to 5 degrees. The Board finds this limitation of dorsiflexion to be consistent with a finding that the Veteran’s impaired motion has been “marked”. To this end, while the Board cannot apply the amended version of Diagnostic Code 5271 before its February 7, 2021, effective date, the Board finds its definition of the term “marked”, including a limitation of dorsiflexion to 5 degrees or fewer, to be consistent with the Board’s finding that the Veteran’s impaired dorsiflexion has indeed been marked throughout the appeal. In this regard, the regulatory criteria in effect both before and after the February 7, 2021, amendment are equally favorable to the Veteran and both result in a finding that a 20 percent rating is warranted for the Veteran’s left ankle based on impaired motion. When, as in this case, the veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis, the regulations pertaining to functional impairment do not apply. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board therefore will not consider functional loss due to factors such as pain and weakness that cause additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Given the Veteran’s complaints of subjective symptoms such as left ankle numbness and weakness, the Board has additionally considered whether a greater rating is available on the basis of neurological impairment. See 38 C.F.R. § 4.124a. A separate rating, or a rating in excess of 20 percent based on these criteria requires a finding that the Veteran’s symptoms approximate at least mild incomplete paralysis. While a May 2019 examiner noted that the Veteran had a hypoactive left ankle reflex, muscle strength testing has been consistently normal, the Veteran has maintained a normal gait. No clinician or examiner has suggested that the Veteran’s left ankle symptoms result in even mild incomplete paralysis. As such, a separate or greater rating is unavailable to the Veteran’s left ankle disability based on neurological impairment. In summation, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 20 percent disability rating under Diagnostic Code 5271 for the Veteran’s service-connected left ankle disability is warranted, effective December 18, 2014 (exclusive of the period for which a temporary total rating was assigned pursuant to 38 C.F.R. § 4.30); however, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent. Because the preponderance of the evidence is against a higher rating at any point during the appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § § 5107 (b James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.