Citation Nr: 21028467 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-00 098 DATE: May 11, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a chronic strain in the right ankle (claimed as tenosynovitis) is denied. Entitlement to a disability rating in excess of 10 percent for a chronic strain in the left ankle (claimed as tenosynovitis) is denied. FINDING OF FACT The Veteran's right and left ankle disabilities are manifested by no more than moderate limited motion of the ankle joint. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the Veteran's right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for an initial rating in excess of 10 percent prior for the Veteran's left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1988 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for chronic right and left ankle strain, rated noncompensable, effective November 1, 2008. An April 2015 rating decision granted an increased rating (10 percent) for chronic right and left ankle strain, effective November 1, 2008. These matters were before the Board in June 2014 when they were remanded for additional development. In a May 2017 decision, the Board denied the claims on appeal. The Veteran appealed the Board's May 2017 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a December 2017 Joint Motion for Partial Remand (Joint Motion), the Court vacated the Board's May 2017 decision to the extent it denied entitlement to an initial increased rating for chronic left and right ankle strain, and remanded the matter to the Board for further action. The portion of the May 2017 Board decision remanding the matter of entitlement to an increased rating for eczema was undisturbed by the Court. In an April 2019 decision, the Board denied a rating in excess of 10 percent for eczema. The Veteran has not appealed this determination; as such, this issue is not before the Board at this time. The Veteran testified before a Veterans Law Judge (VLJ) in July 2012. In June 2018, he was advised that the VLJ who took his testimony was no longer employed by the Board, and given 30 days to request a new hearing. In July 2018 correspondence, the Veteran indicated he did not desire another hearing. This matter was most recently remanded by the Board in July 2020 for additional development. Bilateral Ankle DisabilitiesLaws and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 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, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's bilateral ankle strain condition is rated under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle. Under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. VA amended the criteria for rating musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ) on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Notably, the terms "moderate" and "marked" were previously not defined under VA regulations. Those terms also did not appear to have a generally accepted medical definition. 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. It should also be noted that use of terminology such as "moderate" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under the revised diagnostic code, marked limitation of ankle motion constitutes less than five degrees of dorsiflexion or less than 10 degrees of plantar flexion while moderate limitation of ankle motion constitutes less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. 38 C.F.R. § 4.71a , Diagnostic Code 5271 (effective Feb. 7, 2021). Also included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate ankle disabilities based on other manifestations, including Diagnostic Code 5270 (ankylosis of the ankle), Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of the os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy). None of the above appear to apply to the Veteran. In this case, the Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent for his bilateral ankle condition at any point during the appeal period. The Veteran was afforded a VA general medical examination in January 2009, which included discussion of the claimed bilateral ankle disability. Range of motion testing was found to be normal. The Veteran was diagnosed with chronic ankle strain, bilateral. A July 2009 VA addendum opinion indicates that there was no change in range of motion or increase in pain with repetitive testing. In the Veteran's July 2010 notice of disagreement, he reported that he experienced great pain in both ankles and was limited in how far he could walk. He also reported that he could no longer run and therefore, had issues with maintaining a healthy weight. He reported that when he was on his feet for an extended period of time or even shopping for groceries, he had pain in his feet and swelling. He took over the counter medication to treat the pain. During his hearing before the Board, the Veteran described functional impact of the ankle disability as follows: it took him several seconds to get up with prolonged sitting. He worked in a factory where he had to stand for long periods. He regularly took pain medicine, such as ibuprofen, to get through the day. He also experienced swelling in the ankles and took ibuprofen to keep the swelling down. He reported that he used over-the-counter braces such as Ace bandages, for support. He reported that he used to play sports such as softball, bike ride, and that he is not able to do those things anymore because of ankle pain. He reported that when driving, his ankles stiffened and he had to get out and stretch. He also reported taking time off work to rest his ankles. On an annual evaluation at the VA medical center in August 2013, the Veteran reported knee, but not ankle pain. No other complaints referable to the ankles were documented. During the August 2014 VA examination, the Veteran reported constant, daily pain in each ankle ranging from 5 to 9 out of 10. He also reported that flare-ups severely limited additional activity. Range of motion testing revealed plantar flexion to 30 degrees, before pain, on the right, and 30 degrees before pain, on the left. He had dorsiflexion to 15 degrees before pain, on both sides. Even with pain, he had plantar flexion to 40 degrees on each side and dorsiflexion to 20 degrees with pain on each side. On repetitive testing, the Veteran had plantar flexion to 40 degrees and dorsiflexion to 20 degrees, on both sides. The August 2014 VA examiner noted that the Veteran had no additional limitation of motion following repetitive use testing but did have loss of function, including less movement than normal, pain on movement, and disturbance of locomotion, all on both sides. The examiner was unable to offer an opinion with respect to additional loss of motion during flare-ups without speculation. The examiner wrote that in order to offer such an opinion, the examiner would need to observe the Veteran in states of flare-up and non flare-up. The August 2014 VA examiner also noted that the Veteran had localized tenderness or pain on palpation of each ankle joint. Muscle strength testing was normal on both ankles. Joint stability testing revealed no laxity on either side. The examiner noted that there was no ankylosis of ankle or subtalar and/or tarsal joint on either side. The Veteran denied any shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy). The examiner noted that the Veteran occasionally used a brace for assistance with locomotion. The August 2014 VA examiner also noted that August 2014 X-rays revealed mild irregularity of the distal left fibula with thinning of the medial cortex that was found to be unchanged from 2009. The examiner also indicated that the Veteran's report that he worked in a job where he stood on his feet and that he left work early about once per month due to his ankles. The examiner found that the ankle disability ranged from no affect at all on work to mild impairment of sedentary work and severe impairment of physical work. As addressed in the December 2017 Joint Motion for Remand, the August 2014 VA examination lacks some probative value as it is inadequate for rating purposes under Sharp v. Shulkin, 29 Vet. App. 26 (2017). Notably, in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Based on the December 2017 Joint Motion and the Court decisions in Correia and Sharp, a new VA examination was requested. The Veteran underwent another annual review at the VA medical center in September 2014. He reported knee pain, but there was no record of ankle symptoms. Examination of the lower extremities revealed no pain. Strength was equal in all four extremities, sensation was intact, and reflexes and gait were normal. The Veteran was afforded a VA examination for his ankles in October 2020. During the evaluation, the Veteran reported increased pain in the ankles which impacted his ability to run, walk, or stand for prolonged periods of time. The Veteran denied having flare-ups of the ankles during the evaluation. Upon physical examination, the Veteran had full range of motion in both ankles (i. e., 20 degrees dorsiflexion and 45 degrees plantar flexion). However, the examiner noted that the Veteran had pain in examination which caused functional loss. There was also objective evidence of localized tenderness to palpation of the ankle joints. Repetitive use testing of the ankles did not additionally limit motion. As noted above, the Veteran denied having flare-ups of ankle symptoms; as such, the examiner did not indicate any range of motion loss during flare-ups. It was noted, however, that the Veteran's ankle disabilities resulted in disturbance of locomotion and interference with standing. There was no joint instability in either ankle or ankylosis of the joints. The Veteran denied experiencing flare-ups, in contrast with prior complaints of flareups made by the Veteran in 2014. However, review of the Veteran's entire medical record showed that the Veteran has not made complaints of flareups since his initial rating in 2014, thereby making reasonable that the October 2020 examiner did not opine as to additional loss of function that the Veteran may experience due to flareups. The range of motion measurements produced by the Veteran's diagnostic testing throughout the rating period on appeal are clearly outside the range of limitation necessary to grant a 20 percent rating for the Veteran's bilateral ankle condition. Further consideration of the Veteran's condition under 38 CFR §4.59 is not available because, as the minimum compensable rating has already been assigned. The Board also acknowledges and considers the argument advanced by the Veteran's representative in a March 2021 appellate brief, wherein it was implied that the Veteran may be entitled to additional ratings under other Diagnostic Codes related to disabilities of the ankle. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. No examinations or medical evidence of record has shown his ankle joint is ankylosed, which is necessary for any rating in excess of 20 percent under DCs 5270-5274. The Veteran also has not been diagnosed with any of the requisite disabilities necessary for consideration under DCs 5272-5274. In conclusion, the Board finds the preponderance of the evidence is against finding a rating in excess of 10 percent for the Veteran's bilateral ankle strain disability has been warranted at any time during the period on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.