Citation Nr: 21026944 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-11 218 DATE: May 4, 2021 ORDER Entitlement to a 20 percent rating for the Veteran's left ankle disorder is granted. FINDING OF FACT For the entire appeal period, the Veteran's left ankle has more nearly approximated marked limitation of motion. CONCLUSION OF LAW The criteria for entitlement to a 20 percent rating for a left ankle disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to August 2004. In November 2019, the Board remanded the claim at issue in addition to claims of entitlement to service connection for left and right knee disorders. In a November 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for the left and right knee disorders. Therefore, those claims are no longer before the Board. The Board also notes that the claims file reflects the Veteran is employed at the United States Postal Service, and entitlement to a TDIU rating has not been raised by the Veteran or the record before the Board. See, e.g., August 2020 VA Treatment Records. 1. Entitlement to a rating in excess of 10 percent for a left ankle disorder 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. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran's claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. 29 Vet. App. 26 (2017). The Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. During the entire course of the appeal dating to July 2012 claim, the Veteran's left ankle disorder is rated as 10 percent disabled under DC 5271, which is a rating based on limitation of motion. Under DC 5271, moderate limitation of motion of the ankle warrants a rating of 10 percent disabled; marked limitation of motion warrants a rating of 20 percent disabled. 38 C.F.R. § 4.71A. According to 38 C.F.R. § 4.71, Plate II, normal ankle dorsiflexion is zero to 20 degrees; normal ankle plantar flexion is zero to 45 degrees. Descriptive words, such as "slight," "moderate" and "marked," are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. For the musculoskeletal system and muscle injuries, the applicable rating criteria, found at 38 C.F.R. § 4.71a, were amended effective February 7, 2021. The old rating criteria applies to rating periods prior to February 7, 2021; however, whichever set of criteria is more favorable applies to periods after February 7, 2021, if the claim was pending prior to this date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was pending prior to this date, the more favorable criteria will apply. Under DC 5271, the new rating criteria, moderate limitation of motion of the ankle is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and warrants a rating of 10 percent disabled; marked limitation of motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and warrants a rating of 20 percent disabled. 38 C.F.R. § 4.71a. June 2012 private medical records indicate that the Veteran had ankle range of motion and strength within normal limits. VA clinic records in 2015 including his report of chronic left ankle pain and swelling with his pain becoming "unbearable" otherwise described as sharp pain of 10/10 severity. His muscle strength and motion was within normal limits. X-ray examination was significant for moderate degenerative changes in the left ankle joint with spurring tear aspects of the talus and an equivocal loose body in the posterior joint space. During a January 2016 VA examination, the Veteran reported left ankle pain with swelling. He had pain as soon as he got out of bed, and his pain was made worse with standing, walking or any physical activity taking more than one hour. He had pain of at least 8/10 severity. He worked as a mail carrier which tended to aggravate his left ankle. Range-of-motion measurements were normal and reflected left ankle dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Pain was noted on examination but did not result in, or cause, functional loss. There was no evidence of pain on weight bearing, but tenderness of the medial and lateral malleolus. The Veteran was unable to perform repetitive testing, and the examiner declined to opine on limitations with repeated use over time. Plantar flexion strength was 5-out-of-5, and dorsiflexion strength was 5-out-of-5. The examiner noted no ankylosis or suspected left ankle instability. The examiner also indicated that the Veteran regularly used ACE bandages for left ankle support at that time. Subsequent VA treatment records reflect that the Veteran has been prescribed a left ankle brace and has received corticosteroid shots for his left ankle. See, e.g., September 2019, August 2017, February 2017, and April 2016 VA Treatment Records. There was a slight (4/5) decrease in strength with plantar flexion on one occasion. He had a pronated gait. At a hearing in March 2019, the Veteran described his left ankle as being very unstable. He could not place a lot of pressure on his ankle, and he attempted to keep his left ankle "straight." His podiatrist described to him that his left ankle slid to the left, and he was prescribed an ankle brace. VA clinic records in 2019 evaluation indicated that the Veteran had severe posttraumatic arthritis of the left ankle joint and the condition had progressed and was more severe since original diagnosis. Additionally, the physician indicated that the Veteran "[w]ill need ankle joint fusion or joint replacement in the future." There was radiographic evidence of mild soft tissue swelling, irregularities involving the malleoli which was perhaps from chronic, remote repeated trauma. A magnetic resonance imaging (MRI) scan was interpreted as showing scarring/old partial tears of the tabofibular and calcaneofibular ligaments as well as a tiny bone fragment adjacent to the anterior talus at the insertion of the anterior talofibular ligament. He had stable ligaments in all planes with painful range of motion (ROM). A June 2019 worker compensation claim for a left ankle sprain indicated an approximate 2-month period of work limitations. August 2020 VA podiatry notes indicate that the Veteran had received three steroid injections in the left ankle. Imaging reflected fracture fragments in the medial and lateral malleoli related to his military injury; an anterior ankle joint bone spur; and significant arthritis of the mid tarsal joints. The treating physician recommend that the Veteran use his ankle brace as necessary and receive no further steroid injections in the ankle. During a November 2020 VA examination, the examiner diagnosed the Veteran with left ankle degenerative changes and instability. The Veteran reported experiencing left ankle flare-ups including worsening pain and limited range of motion. His limitations included difficulty with running, squatting, ambulating stairs/ladders and walking/standing for prolonged periods of time. Initial and repetitive use range-of-motion measurements reflected left ankle dorsiflexion to 10 degrees and plantar flexion to 20 degrees with pain, including with weight bearing, that does not result in functional loss. The examiner estimated range of motion after repetitive use over time and during flare ups as left ankle dorsiflexion to 10 degrees and plantar flexion to 20 degrees with pain. Plantar flexion strength was 5-out-of-5, and dorsiflexion strength was 5-out-of-5. The examiner noted no ankylosis, but did note left ankle instability upon testing. The examiner also indicated that the Veteran regularly used a brace for left ankle support. The left ankle manifested no objective pain on nonweight-bearing. The left ankle manifested no malunion of the os calcis or astragalus. The Board notes that old version of DC 5271 warrants the current 10 percent rating for "moderate" limitation of motion. Moderate has been defined as tending toward the mean or average amount of dimension. https://www.merriam-webster.com/dictionary/moderate. A 20 percent rating was warranted for "marked" limitation of motion which is not further defined. Marked has been defined as having a distinctive or emphasized character, and is synonymous with terms such as conspicuous, dramatic, eye-catching, noticeable and pronounced. https://www.merriam-webster.com/dictionary/marked. The revised criteria of DC 5271 specifically define a 10 percent rating in degrees - moderate limitation of motion of the ankle is less than 15 degrees dorsiflexion (or 75% of normal motion) and less than 30 degrees plantar flexion (or 66% of normal motion). The new criteria also specifically define marked in degrees as less than 5 degrees dorsiflexion (25% of normal motion) or less than 10 degrees plantar flexion (22% of normal motion). The VA examinations measured left ankle motion loss no worse than left ankle dorsiflexion to 10 degrees and plantar flexion to 20 degrees with pain. The evaluations in the clinic setting do not specifically describe motion loss in terms of degrees, but do describe "normal" range of motion. Thus, the Veteran demonstrates dorsiflexion which is 50 percent or normal and plantar flexion which is 44 percent of normal. This is consistent with tending towards the mean or average, and thus, consistent with moderate motion loss under the old criteria. These findings also fall short of the new criteria for less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. However, the Veteran's range of motion findings do not account for other aspects of functional impairment such as occasional slight (4/5) weakness, swelling, stiffness, and perceived instability. He has more pronounced symptoms with use with limitations such as difficulty with running, squatting, ambulating stairs/ladders and walking/standing for prolonged periods of time. He wears an ankle brace, has received steroid injections, and is nearing the point where he "[w]ill need ankle joint fusion or joint replacement in the future." When considering these functional impairment pursuant to 38 C.F.R. §§ 4.40 and 4.45 and applying the approximating provisions of 38 C.F.R. §§ 4.7, the Board finds that the Veteran has more nearly approximated the criteria for left ankle disability with marked limitation of motion since the inception of the appeal. Thus, a 20 percent rating is warranted. The next higher 30 percent rating requires ankylosis. Ankylosis is a medical term meaning "immobility and consolidation of a joint due to disease, injury or surgical procedure" or "[s]tiffening or fixation of a joint as a result of a disease process, with fibrous or bony union across the joint." See Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. Apr. 16, 2021) (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th Ed. 2006) and CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989), respectively). The Veteran has described keeping his left ankle straight with use of a brace. The radiographic findings show scarring/old partial tears of the tabofibular and calcaneofibular ligaments, a tiny bone fragment adjacent to the anterior talus at the insertion of the anterior talofibular ligament, posttraumatic arthritis and fracture fragments in the medial and lateral malleoli. However, there is no description of fibrous or bony union across the joint/. The Veteran has consistently shown active motion in dorsiflexion and plantar flexion. Overall, the Board finds that the lay and medical evidence has not more nearly approximated ankylosis or functional ankylosis for any time during the appeal period. As such, the preponderance of the evidence is against a rating in excess of 20 percent for any time during the appeal period. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.