Citation Nr: 21027141 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 11-20 088 DATE: May 4, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for a healed distal fibular shaft, status post right ankle fracture, is denied. FINDING OF FACT The Veteran's healed distal fibular shaft, status post right ankle fracture, has not been manifested by malunion of the os calcis or astragalus, an astragalectomy, or ankylosis. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for a healed distal fibular shaft, status post right ankle fracture, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from June 1989 to September 1989 and on active duty from November 1990 to November 1991. The Veteran appealed a February 2010 rating decision by the Agency of Original Jurisdiction (AOJ). In April 2017 and January 2019, the Board of Veterans' Appeals (Board) remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When, as here, a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Normal ranges of motion of the ankle are as follows: Dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The terms "moderate" and "marked" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the new regulations do not impact the Veteran's rating as to a higher than 20 percent rating. Therefore, the Board will not address them in this decision. Here, the Veteran is rated at the maximum 20 percent rating for entire period on appeal under Diagnostic Code 5271. A higher rating is not warranted for the Veteran's right ankle condition since the Veteran does not argue, and the evidence does not demonstrate, the presence of malunion of the os calcis or astragalus, an astragalectomy, or ankylosis pursuant to Diagnostic Codes 5270 and 5272-5274. Medical evidence of record generally notes pain, swelling, difficulty with prolonged standing and walking, and use of an ankle brace. The Board finds such symptoms are already contemplated under the Veteran's current 20 percent rating. However, medical evidence does not demonstrate that the Veteran has ankylosis of the ankle. Specifically, the August 2020 VA examiner found that ankylosis was not present and that even during flare-ups and after repeated use, plantar flexion and dorsiflexion were both to 5 degrees. Because the Veteran can move his ankle joint, it is not ankylosed. Overall, the evidence suggests the Veteran is still able to stand and ambulate, to include during flare-ups. See August 2020 VA examination report. The Veteran has not provided additional argument detailing complete immobilization of his ankle. As such, the claim is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.