Citation Nr: 21026798 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-13 611 DATE: May 4, 2021 ORDER Service connection for a right ankle disorder claimed as secondary to service-connected left ankle degenerative joint disease (DJD) is denied. Entitlement to a separate rating for associated left ankle non-limitation of motion (LOM) symptomatology is granted. FINDINGS OF FACT 1. The Veteran's right ankle disorder is not shown to be secondary to service-connected left ankle degenerative joint disease and is not otherwise related to an in-service injury or disease. 2. For the entire period covered by this claim, the Veteran's left ankle degenerative joint disease has been manifested by no more than moderate instability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disorder, to include as secondary to service-connected left ankle degenerative joint disease, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. For the entire period covered by this claim, resolving reasonable doubt in the Veteran's favor, the criteria for the assignment of a separate 10 percent evaluation for the Veteran's left ankle disability on the basis of instability have been met. See 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 , 4.1, 4.45, 4.71a, Diagnostic Code 5273. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1981 to August 1983. This matter comes before the Board from an August 2011 rating decision. The Board remanded this matter in September 2018 for further development. Such has been completed and this matter is returned to the Board for further consideration. The Veteran testified before the undersigned at a hearing held in April 2018. A transcript is associated with the claims folder. 1. Service connection for a right ankle disorder The Veteran contends that service connection is warranted for a right ankle disability. He alleges that he had right ankle pain beginning in 1985 while working as an electrician and that the pain worsened in 2000. He also alleged that his left ankle gave way and the result of this caused him to injure his right ankle with an Achilles tendon tear. These allegations were made in a November 2010 statement in support of claim. At his April 2018 hearing the Veteran described that he limps due to his left ankle symptoms and puts his weight onto his right foot and alleged that this is the cause of his right ankle problems. Transcript pg. 6. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established under the provisions of 38 C.F.R. § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. Certain chronic diseases, to include neurological disorders and psychosis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection solely on the basis of continuity of symptomatology can only be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability, in this case a right ankle disorder that was incurred in or aggravated by service or is proximately due to or the result of, or aggravated beyond its natural progress by service-connected disability of the left ankle. In making all determinations, the Board must fully consider the lay assertions of record. If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Service treatment records show no findings or complaints of right ankle issues. Normal feet and lower extremities were shown on September 1980 entrance examination. Moreover, he denied foot trouble, bone joint or other deformity, arthritis, lameness, broken bones or trick knee in the accompanying report of medical history. In October 1981 he was treated for a possible broken left ankle diagnosed as a severe ankle sprain. The findings were all pertinent to the left ankle with no findings pertaining to the right ankle. His August 1983 separation examination again revealed normal lower extremities and foot examination except for a scar of the left knee. The Veteran was noted to run a lot and had leg cramps secondary to weight-lifting; he no longer runs. The accompanying report of medical history disclosed no significant orthopedic history other than the same history of leg cramps as noted on examination. Private treatment records showed that in October 1993 the Veteran was treated for a right Achilles tendon rupture and underwent surgery. His history was noteworthy of having been admitted to ER for right ankle injury. He was playing volleyball when he heard a pop and believed he may have torn his Achilles tendon. He was able to walk on it but was unable to stand on it. Another record gave a history of his playing volleyball when he was jumping for the ball and felt a pop in the back of his right heel and was unable to walk on his foot. VA treatment records repeatedly show issues with right ankle pain and instability requiring use of bilateral ankle braces from 2010 through 2011. In October 2011 he was noted to have developed right ankle pain after his left ankle injury 12 years earlier and tore his Achilles tendon 15 years ago and now had pain in the medial aspect of the ankle. This same history was noted in a February 2011 orthopedic surgery note which also noted the Veteran to avoid weightbearing of the opposing left ankle and diagnosed for the right ankle intact Achilles tendon, status post Achilles tendon tear repair, suspected ligamentous injury. Other records from February 2011 noted the Veteran's right Achilles tendon tear having been repaired with no issues from this; however, he still had pain over the medial and lateral side of the right side of the right ankle along the PT/peroneal tendons. In May 2011 he was seen in physical therapy for increased pain in both feet and ankles right worse than left and was using a cane. He was told to continue home exercises at this time. The report of an August 2011 VA examination included a review of the claims file and examination the Veteran. A diagnosis of Achilles tendon rupture right ankle in 1996 was given. It was noted that he had ruptured his right tendon in 1996 playing volleyball. A left ankle DJD was also diagnosed dating back to 1982. Following examination with 40 degrees plantar flexion and 10 degrees dorsiflexion with no evidence of painful motion, unchanged after repetitions and with full 5/5 muscle strength, the VA examiner gave an etiology opinion on the right ankle diagnosis of Achilles tendonitis. The examiner stated that there is no evidence that the Veteran had any complaints, evaluation, or treatment for the right ankle in service. The right ankle disorder was due to playing volleyball and sustaining an Achilles tendon rupture in October 1993, requiring surgery. There is no indication that the left ankle played any part in the Achilles tendon rupture on the right ankle. The right ankle is not service-connected, and it is not secondary to the left ankle. The examiner did not give a rationale for this opinion. The same examiner gave a favorable opinion on the etiology of the left ankle, finding the left ankle was as likely as not related to service. VA treatment records from August, September and October 2011 showed continued treatment for orthopedic problems including right ankle pain with unstable ankle noted in August 2011. The same history as shown in earlier records was given of having torn his right achilles tendon which was repaired with no further issues but with pain over the medial and lateral side of the right ankle along the PT peroneal tendons in September 2011. The records also described his right ankle as unstable and he used a cane and walker for when he needed to stand for long periods. Records from 2012 through 2017 continued to show right ankle problems with persistent pain and instability requiring bracing. These includes records showing right ankle pain at a level 6 in August 2013, at a level 5 in October 2013, and level 8 in July 2017. In August 2015 and September 2015, he was assessed with right ankle peroneal tendonitis with mild acquired flat foot. The report of a January 2018 VA examination diagnosing DJD of the left ankle did not include a right ankle diagnosis, nor did it include any opinion about the etiology of any right ankle findings. The right ankle was examined along with the left ankle with range of motion findings noted to be normal painless motion on initial range of motion, unchanged after repetitive motion and with full 5/5 muscle strength. VA treatment records from March 2018 showed ongoing issues with DJD of his ankles, with treatment including pain relievers and noting minimal responses to physical therapy and steroid injections. He had pain levels of 4. The report of an August 2019 VA examination diagnosed right ankle strain and right Achilles tendon injury. The date of diagnosis was 2019. A plaque-like area of calcification the distal diaphysis of the right tibia and fibula was noted. The history of his left ankle pain was noted to have begun in 1983 and he reportedly had compensated for the left ankle pain with the right ankle and developed pain in 1989 in the right ankle. He also tore his right Achilles tendon playing volleyball in 1995. Treatment included cortisone injection, various ankle braces, and physical therapy. He has also received braces for the right ankle. The current symptom was chronic pain, which he treated with Naproxen that is prescribed by the VA. Examination of the right ankle disclosed 20 degrees dorsiflexion, 25 degrees plantar flexion, with pain noted dorsiflexion which causes functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue and objective evidence of crepitus. Following review and recital of the evidence the August 2019 VA examiner gave an opinion that he could not determine a baseline level of severity of the right ankle disorder based on medical evidence available prior to aggravation or the earliest medical evidence following aggravation. The examiner further opined that regardless of an established baseline, the Veteran's claimed condition was not at least as likely as not aggravated beyond natural progression by his service connected left ankle disability. The rational was as follows. In review of the medical records including the Remand letter in 2018, there are no records and evidence showing the current right ankle condition was caused by or aggravated by the service connected left ankle condition. The first time the right ankle is mentioned as being painful was in 1993 in conjunction with an Achilles tendon injury and the right ankle condition continues to present. It was not linked to or aggravated beyond natural progression by the service connected left ankle condition VA treatment records from January 2020 documented continued pain in the ankles bilaterally with CSI injections not being helpful with a diagnosis of DJD including the right ankle. A June 2020 record diagnosed DJD of the ankles. The report of a July 2020 record noted the Veteran to be presenting with bilateral ankle pain and instability. He reported a fall down a stairwell in 1999 and he began having left ankle pain. After favoring his left ankle, he began have right ankle pain, and both ankles often have pain after a day of overuse or walking a lot. The pain was throbbing in nature, and happened once a week, alleviated with Naproxen. A January 2020 X ray diagnosed minimal degenerative changes medial malleolus: ossification in the posterior lower leg possibly within the Achilles tendon and representing tendinopathy. Correlate clinically. Additional correlation with MR Achilles tendon may be considered. Atherosclerosis. Examination of the right foot and ankle disclosed no gross deformity but with tenderness to palpation over the medial greater than lateral malleolus. He has had pain with plantar flexion but no pain with resisted inversion/eversion. The assessment was of presenting with bilateral ankle osteoarthritis with pain well controlled with Naproxen. The report of a September 2020 VA examination did not include an opinion about the etiology of the right ankle disability but rather focused on the severity of the service connected left ankle disability. However, the examination did include some findings pertaining to the right ankle, including abnormal range of motion without functional loss, pain on motion and pain on palpation of the right ankle located on anterior area of talus of moderate severity. This was deemed unrelated to the claimed condition. There was no pain on weight bearing and no crepitus noted. The examiner explained that the symptoms noted on the day of examination for right ankle are due to an unrelated medical condition not claimed by Veteran. No diagnosis was deemed warranted on this DBQ. None of the treatment records discussed above include any opinions regarding whether the right ankle disorder was caused or aggravated by the left ankle disorder. Having reviewed the record, the Board finds that the preponderance of the evidence is against a grant of service connection for a right ankle disability. Although a current disability of DJD of the right ankle is shown, there is no credible medical or lay evidence showing a right ankle disability of in-service onset or otherwise related to any in-service incident. The preponderance of the medical evidence is further against a finding that the right ankle disorder was caused or aggravated by his service-connected right thumb disability. Regarding direct service connection, the Board accepts opinion from the August 2011 VA examiner, which pointed out that there was no evidence of any complaints, evaluation, or treatment for the right ankle in service. The right ankle disorder was due to playing volleyball and sustaining an Achilles tendon rupture in October 1993 requiring surgery. Such opinion is supported by the evidence showing no evidence of right ankle issues in service and the post service injury to the Achilles tendon in 1993. Regarding secondary service connection the Board accepts the opinion from the August 2019 VA examiner who found that the right ankle disorder was not caused or aggravated by the service-connected left ankle disorder, pointing out that the medical evidence reviewed did not establish a baseline severity for the right ankle disorder. Furthermore, regardless of the baseline, the examiner stated that the right ankle disorder was not aggravated by the left ankle disorder, providing adequate rationale that explained that the records and evidence did not show that the right ankle was caused or aggravated by the left ankle disorder. Following review and recital of the evidence the August 2019 VA examiner gave an opinion that he could not determine a baseline level of severity of the right ankle disorder based on medical evidence available prior to aggravation or the earliest medical evidence following aggravation. The examiner further opined that regardless of an established baseline, the Veteran's claimed condition was not at least as likely as not aggravated beyond natural progression by his service connected left ankle disability. It was reasoned that, in review of the medical records including the Remand letter in 2018, there are no records and evidence showing the current right ankle condition was caused by or aggravated by the service-connected left ankle condition. The first time the right ankle is mentioned as being painful was in 1993 in conjunction with an Achilles tendon injury and the right ankle condition continues to present. It was not linked to or aggravated beyond natural progression by the service connected left ankle condition. The Board accepts the findings and opinions from the addendum VA opinions from the August 2019 VA examiner. The opinions given in this addendum are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran believes his right ankle disability was caused or aggravated by his service-connected left ankle disability he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical examiner's opinions from October and November 2020. Thus, the Board finds that the claim of service connection for a right ankle disorder is not warranted on any basis including as secondary to service connected residuals of a left ankle disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to separate rating for associated non-LOM symptomatology, left ankle The Veteran alleges that a disability rating for instability of the left ankle is warranted. His appeal of the disability rating for left ankle DJD with manifestations of limited motion (including consideration of possible ankylosis), decreased muscle strength, and functional loss including on repetitive use and flareups, has already been adjudicated by the Board in its September 2018 decision which granted a 20 percent rating based on such manifestations. The Board remanded the issue of entitlement to a separate rating for instability, and this present matter on appeal is limited to consideration of symptomatology not associated with loss of motion, to include laxity and deformity. At his April 2018 hearing the Veteran described left ankle pain that requires medication every day. He further described an incident where the ankle gave out and he actually fell once. He also described pin and needles sensation in the ankle. Transcript pg. 4. Disability ratings are determined by applying the criteria set forth in VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14 ; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. See Fenderson, 12 Vet. App. at 126-27; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Significantly, during the time period on appeal from June 11, 2018 to the present, the criteria for musculoskeletal disorders were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). If, as here, 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); VAOPGCPREC 3- 2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. In regard to criteria pertaining to the ankle, the revisions were limited to Diagnostic Code 5271 for limited motion of the ankle, specifying that marked limited motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and moderate limited motion is less than 15 degrees dorsiflexion and less than 30 degrees plantar flexion. See 85 FR 76453, 76464. However, these revisions are not applicable in this matter for the following reasons. The Board shall not consider the evidence pertaining to the Veteran's loss of motion/functional loss, as such has already been adjudicated by BVA and would violate the rules against pyramiding. 38 C.F.R. § 4.14. Thus, the factual background shall narrowly focus on findings of deformity or instability, if any is shown. Records from September 2010 and October 2010 noted left ankle pain with the October 2010 records noting instability having developed along with pain. A phone message revealed he requested a cane and an ankle brace. VA treatment records from January and February 2011 addressing bilateral ankle issues with pain and instability, reportedly of the right ankle rather than left, also disclosed him to use a cane and braces for both ankles for at least 2 months. He also avoided weight bearing with the left ankle due to pain. The February 2011 records included findings of left ankle lateral instability with crepitus, pain along joint line with X-rays noting this history as well when it assessed left ankle DJD and chronic instability as well as peroneal tendonitis with mild acquired flatfoot. March 2011 physical therapy notes also described him as having significant pain and instability of the left ankle over time and was noted to wear braces which help. He also was noted to use a cane. Treatment plans included ankle and lower extremity exercises. In May 2011 he was seen for his physical therapy and was noted to have to use a cane due to increased pain in both feet and ankle. The report of an August 2011 VA examination included a review of the claims file and examination of the Veteran. The examiner diagnosed DJD of the left ankle. Flare-ups including on prolonged standing, and any impact activity aggravated the left ankle. Of note, he described a sense of the ankle turning easily on uneven surfaces. Among the factors resulting in functional loss in the left ankle, he was noted to have deformity. On testing for instability, he had positive findings including on left Anterior drawer test and Talar tilt test there is laxity compared with opposite side. However in spite of these findings of laxity, he was said not to have the following issues affecting the left ankle; "shin splints", stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (Os calcis) or talus (astragalus), or has the Veteran had a talectomy (astragalectomy). Regarding assistive devices he was noted to wear ankle braces bilaterally which were noted to be well worn. He also had a rollator walker that appeared new. VA records from August 2011 through January 2012 showed ongoing treatment for left ankle issues with pain and instability. A September 2011 record noted the Veteran's left ankle to have significant pain and instability over time, with crepitus and pain along the joint line noted. The treatment included obtaining molded for bilateral custom thermoplastic AFOs to assist with ambulation and support ankles. An October 2011 treatment note likewise noted that he was measured and molded for AFO braces for chronic left ankle DJD. A January 2012 record noted he was using a cane and walker when he needed to stand for a line time. Records from 2012 through 2017 continued to show left ankle problems with persistent pain and instability requiring bracing. These includes records showing left ankle pain at a level 6 in August 2013, at a level 5 in October 2013 and at a level 7 in June 2014, level 6 in April 2016 and level 8 in July 2017. In August 2015 he was assessed with chronic left ankle pain and was noted to have DJD with chronic instability. He was prescribed NSAIDS and brace for the left ankle. The only surgical option was tibiotalar fusion and he was not deemed a candidate as long as he smokes. He was also prescribed physical therapy for strengthening. Other records from August 2015 indicated he had been offered fusion surgery for left ankle pain years ago but refused. The same findings of left ankle pain with chronic instability with bracing NSAIDS was noted in September 2015. The report of a January 2018 VA examination which diagnosed DJD of the left ankle showed no ankle instability or dislocation suspected, thus testing for instability (Anterior drawer and Talar tilt) was not done. No findings of deformity were noted on examination. No assistive device such as brace was said to be used. As with the earlier examination from 2011, he was said not to have the following issues affecting the left ankle; "shin splints", stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (Os calcis) or talus (astragalus), or has the Veteran had a talectomy (astragalectomy). The examiner noted that there was a worsening of symptoms however no additional diagnoses had been rendered. VA treatment records from March 2018 showed ongoing issues with DJD of his ankles with treatment including pain relievers and noting minimal responses to physical therapy and steroid injections. He had pain levels of 4. The report of an August 2019 and the September 2020 VA examinations again diagnosed DJD of the left ankle and disclosed the same findings as shown in the January 2018 VA examination ankle including pertinent findings of no ankle instability or dislocation suspected, thus testing for instability (Anterior drawer and Talar tilt) was not done. No findings of deformity were noted on examination. As with the earlier examination from 2011, he was said not to have the following issues affecting the left ankle; "shin splints", stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (Os calcis) or talus (astragalus), or has the Veteran had a talectomy (astragalectomy). In the August 2019 VA examination, the Veteran gave a history of his left ankle disorder having been treated with cortisone injection, various ankle braces, and physical therapy. However, the current assistive device noted to be presently used in the August 2019 VA examination was a cane with no braces noted. The September 2020 VA examination noted the Veteran to wear ankle braces daily bilaterally including for the DJD of the left ankle and do home physical therapy exercises. VA treatment records from January 2020 documented continued pain in the ankles bilaterally with CSI injections not being helpful with a diagnosis of DJD including the left ankle. The report of a July 2020 record noted the Veteran to be presenting with bilateral ankle pain and instability. He reported a fall down a stairwell in 1999 and he began having left ankle pain. After favoring his left ankle, he began have right ankle pain, and both ankles often have pain after a day of overuse or walking a lot. Pain was throbbing in nature, and happened once a week, alleviated with Naproxen. Previously he had cortisone steroid injection (CSI) and physical therapy (PT). CSI offered minimal improvement for a matter of hours and he was concerned that he will cause degenerative changes from repetitive steroid injection use. He ambulated with a cane if he is walking long distances. Left ankle X ray of January 2020 yielded an impression of findings consistent with ankle instability with widening of the lateral ankle mortise. Remote trauma medial malleolus. Degenerative changes lateral malleolus. Atherosclerosis. Examination of the left ankle disclosed no gross deformity. There was tenderness to palpation over the medial greater than lateral malleolus. There was no pain with resisted inversion/eversion, and pain with dorsal flexion. The Veteran was assessed as presenting with bilateral ankle osteoarthritis. Pain was well-controlled with previously prescribed Naproxen. The Veteran was to continue with scheduled Naproxen daily for pain. He was educated to start home exercise programs (HEP) for strengthening. He was deferring surgery as he did not desire it and his history for post-op rehab. As the record thus shows left ankle instability, the Board finds that a separate rating under Diagnostic Code 5273, for malunion of os calcis, is appropriate here. Although the Veteran has not been diagnosed with malunion of os calcis, he may still be rated under this code because its symptoms can include instability; as such it is analogous to the disability picture at issue. Moreover, as instability involves distinct symptoms and poses different problems from the limitation of motion accounted for by the rating under Diagnostic Code 5270 (which has been previously adjudicated by the Board), assignment of a separate rating for instability does not violate the rule against pyramiding. 38 C.F.R. § 4.14. Under 38 C.F.R. § 4.71a Diagnostic Code 5273 a 10 percent rating is afforded for malunion of os calcis or astragalus with moderate deformity and a maximum of 20 percent is afforded for a malunion of os calcis or astragalus with marked deformity. Under Diagnostic Code 5274 a 20 percent rating is warranted for astragalectomy. The objective evidence here demonstrates left ankle instability. Of note, the VA examination in August 2011 indicated that the ankle was had laxity as shown on the left Anterior drawer test and Talar tilt test. Additionally, the August 2011 VA examination noted deformity of the left ankle. Further supporting such a finding are the VA treatment records that as discussed above throughout the pendency of this appeal are noted to describe findings of laxity of the left ankle, and the evidence showing that the Veteran used a brace to stabilize this ankle throughout this appeal. Weighed against the findings of laxity, the more recent VA examinations from 2018, 2019 and 2020 are noted to show no reports of instability or laxity, thus testing for laxity was not done. Additionally, these examinations showed no findings of deformity. However, the evidence in the treatment records including a July 2020 record show the Veteran to have instability involving the left ankle and he is noted to require bracing. For this reason, resolving doubt in the Veteran's favor, both the lay and medical evidence is found to support an evaluation of 10 percent, for moderate symptomatology under Diagnostic Code 5273. However, the weight of the evidence is against a finding of marked symptoms, as the VA examinations failed to show evidence of even moderate symptoms of marked deformity, laxity or instability between 2018 and 2020, nor did the other evidence discussed above disclose a pathology that more closely resembles marked symptoms. Furthermore, there is no evidence that the Veteran has undergone surgery for the left ankle, to the contrary he has declined such surgery. Thus, consideration of a 20 percent rating for astragalectomy under Diagnostic Code 5274 is not warranted. In sum, a 10 percent evaluation for instability under Diagnostic Code 5273 is appropriate. As discussed previously the issue of entitlement to an increased rating based upon loss of motion and functional loss as such has already been adjudicated by BVA in its September 2018 decision and is not for consideration in this matter. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.