Citation Nr: 21026624 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-35 597A DATE: May 3, 2021 ORDER Entitlement to a disability rating of 20 percent for left ankle degenerative joint disease prior to June 28, 2016 is granted. Entitlement to a rating in excess of 10 percent for left ankle degenerative joint disease on and after September 1, 2016 is denied. FINDINGS OF FACT 1. Prior to June 28, 2016 the Veteran's left ankle disability was manifested by decreased motion and pain, characterized by marked limitation of motion, but there is no evidence of ankylosis at any point during that period on appeal. 2. Following September 1, 2016 Veteran has had no more than moderate limitation to range of motion of the left ankle. The Veteran does not have marked limitation to the range of motion of the left ankle, ankylosis of the left ankle, or malunion of any bones in the left lower extremity. CONCLUSIONS OF LAW 1. Prior to June 28, 2016, the criteria for a 20 percent rating for left ankle degenerative joint disease are met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271. 2. Following September 1, 2016, the criteria for entitlement to an evaluation in excess of 10 percent for left ankle degenerative joint disease 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 in the United States Army from October 1992 until October 2000. This case comes before the Board of Veteran's Appeals (Board) on appeal from a November 2014 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran testified before the undersigned at an August 2019 hearing; a transcript has been associated with the claims file. Previously, the Board remanded the matter for consideration of new evidence to include a May 2018 VA examination and additional medical records. The matter has returned for adjudication. 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). As an initial matter, the Board notes that the Veteran is assigned a 100 percent rating for the period from June 28, 2016, to September 1, 2016, due to left ankle surgery; the Board will not disturb this rating. 1. Entitlement to a disability rating of 20 percent for left ankle degenerative joint disease prior to June 28, 2016, is granted. The Veteran contends his left ankle degenerative joint disease warrants a higher disability rating. Currently, he has a 10 percent disability rating effective October 10, 2000. 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). These amendments revised select DCs "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 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 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; Kuzma, 341 F.3d 1327. 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 are more favorable to the Veteran will be applied. Prior to the regulatory change, under DC 5271 a 10 percent rating was warranted for moderate limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. A 20 percent rating was warranted for marked limitation of motion. Id. For VA purposes, a normal range of ankle motion is from 0 to 45 degrees of plantar flexion and 0 to 20 degrees of dorsiflexion. 38 C.F.R. § 4.71a, Plate II. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). 38 C.F.R. § 4.71a. A 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Id. June 2012 private treatment records show the Veteran complained of left ankle pain and stiffness when he first stands in the morning that last 10 to 15 minutes or after sitting for an extended period of time and then standing up. He described sharp pain, strain, and complaints of instability and swelling with attempted running. At that time, range of motion testing showed dorsiflexion of 1 degree and plantar flexion of 41 degrees on the left ankle. No ankylosis was shown. September 2012 records from the Veteran's orthopedist show the Veteran was presenting with moderate constant pain in the left ankle. The Veteran stated the pain was aching and not changing in character. At that time the Veteran reported symptoms included joint instability, limping, swelling, tenderness, and weakness. The Veteran described the symptoms as primarily morning stiffness and activity-related pain. Range of motion testing showed ankle dorsiflexion of 0 degrees, with flexion of 40 degrees. Ankylosis was not shown. May 2013 private treatment records from the Veteran's family practice clinic show the Veteran complained of persistent pain, swelling, and weakness of his left ankle and requested to be evaluated by an orthopedic specialist. September 2013 private podiatry records show the Veteran was unable to participate in sports or run and, according to the Veteran, the ankle had gotten much worse. The Veteran stated he felt his ankle was somewhat unstable and had trouble using or trying stairs. Private records from October 2013 note the Veteran had about 3 degrees of dorsiflexion on the left ankle whether the leg is straight, or the knee is bent. The Veteran was having difficulty walking and a change in gait was noted. November 2013 range of motion testing showed the Veteran had full range of motion in the joints of the lower extremity with the marked exception of decrease in dorsiflexion of the ankles. The decrease in dorsiflexion was more so noted on the left with dorsiflexion of about 3 degrees. No evidence of ankylosis was noted. The Veteran underwent a VA examination in October 2014. At that time, he was diagnosed with left ankle degenerative joint disease. He complained of pain and weakness in the ankle, particularly when running or when walking long distances. Range of motion testing showed plantar flexion of 45 degrees without pain and dorsiflexion of 20 degrees without pain. No additional limitation was noted on repetitive motion. No instability or ankylosis was found. May 2016 private records from a podiatrist described the Veteran's long history of persistent left foot and ankle pain. The notes described limited mobility to the ankle joint as well as pain. At that time, he was seen for potential surgical options. Upon review of the totality of the record, the Board finds that a rating of 20 percent is warranted for the period prior to June 28, 2016. Specifically, as noted in the September 2012, October 2013 and November 2013 private treatment records, dorsiflexion was limited to less than 5 degrees in the left ankle on multiple occasions. The Veteran reported instability and near constant pain. Limping, abnormal gait, and weakness were persistent. The Board finds that the above-cited evidence more closely approximates a marked ankle disability and warrants the higher 20 percent rating for the period prior to June 28, 2016. This is the highest rating available under Diagnostic Code 5271. The Veteran's VA and private treatment records do not contain any clinical findings of ankylosis. Thus, the evidence is against a finding that the Veteran has ankle ankylosis. Therefore, he does not meet the rating criteria for a rating in excess of 20 percent under Diagnostic Code 5270. The Board has also considered the applicability of DeLuca v. Brown, 8 Vet. App. 202 (1995), including whether there is a basis for assigning ratings in excess of 20 percent due to additional limitation of motion resulting from pain or functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59. However, where a Veteran is in receipt of the maximum schedular rating based on limitation of motion of the ankle and a higher rating requires ankylosis, the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45, and 4.59) are not for application. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the Veteran has reported flare-ups that cause increased limitation of motion. The Board acknowledges that Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) requires that the examiner estimate the functional loss that would occur during flare-ups; however, as the Veteran is receiving the maximum schedular rating possible under Diagnostic Code 5271 and an increased rating is not warranted without a finding of ankylosis, which as noted above is not demonstrated, a VA examination or opinion that complies with Sharp is not required. Accordingly, for the period prior to June 28, 2016, a rating of 20 percent, but no higher, is granted. U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a disability rating in excess of 10 percent for left ankle degenerative joint disease following September 1, 2016 is denied. In a December 2016 VA examination, range of motion testing showed normal range of motion with dorsiflexion of 20 degrees with plantar flexion of 45 degrees. The Veteran described his left ankle flare ups as stiffness, difficulty walking, swimming, and bike riding, inability to run, sustain exercise, frequent pain, swelling, and bruising with walking. Pain was noted on exam with dorsiflexion and plantar flexion as well as weight bearing but did not result in functional loss. At the time of the exam, there was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue or objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, and no additional loss of function or range of motion after a minimum of three repetitions. Additionally, the exam found no ankylosis or instability of the ankle. In a May 2018 VA examination, the Veteran noted flare ups of the left ankle that can be described as it hurts to put pressure on it, hurts to walk, throbbing pain, and difficult to walk. He reported that it depends on the temperature and that he has limited flexibility. Regarding functional loss, the Veteran stated he has difficulty with walking, standing for long periods of time, and running. Range of motion measurements of the Veteran's left ankle found dorsiflexion of 10 degrees and plantar flexion of 25 degrees. The range of motion contributed to functional loss limiting the Veteran's ability to jump, run, squat, and walk for longer duration. Pain was noted on examination and causes functional loss. Pain was noted with dorsiflexion, plantar flexion, and weight bearing. Additionally, localized tenderness and pain on palpation of the joint associated with the soft tissue was noted and objective evidence of crepitus was found. The Veteran was able to perform repetitive-use testing with at least three repetitions, and there was no additional loss of function or range of motion after three repetitions. In an August 2019 VA hearing, the Veteran testified that he felt an increased rating was warranted because of continued aggravation of the joint and his quality of life. He further testified his ankle symptoms had remained primarily stable since his December 2016 VA examination. The Veteran stated this was due to a better understanding of his limitations that he does not overexert himself. Based upon review of the record, the Board finds that on and after September 1, 2016, the Veteran's left ankle degenerative joint disease is best contemplated by the 10 percent criteria currently assigned under DC 5271. The Veteran's dorsiflexion is limited to, at worst, to 10 degrees. He has limited range of motion, but the evidence does not show that it was more accurately described as "marked." For instance, the Board notes that the Veteran could perform repetitive motion with no additional loss in motion. His strength was normal, showing that he did not have weakness in his ankle. These factors weigh against a finding that the severity of the Veteran's limitation of ankle motion could be considered "marked" under the prior rating criteria. Under the current rating criteria, "marked" is specifically defined as 5 degrees of dorsiflexion or less; this is simply not shown in any evidence of record. The measurements do not fall close to what medical experts consulted by VA determined to be "marked," and instead fall clearly within the range considered to be "moderate." There is further no evidence of ankylosis, malunion of the os calcis or astragalus, or an astragalectomy; thus, a separate or higher rating is not warranted. The Board has considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his ankle disabilities and his descriptions are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, nothing in the Veteran's lay statements provides a basis for assigning higher ratings than those assigned herein under any Diagnostic Code pertaining to musculoskeletal disabilities of the ankle. Additionally, the Board has considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is no probative evidence that these factors caused limitation of function equivalent to marked limitation of motion. Therefore, the preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. A disability rating in excess of 10 percent for left ankle degenerative joint disease on and after September 1, 2016 is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.N. Bush, 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.