Citation Nr: 21029116 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-02 071 DATE: May 12, 2021 ORDER Entitlement to a rating of 20 percent, but no higher, for a left ankle disability is granted. FINDING OF FACT Resolving doubt in the Veteran's favor, his left ankle disability is manifested by marked limitation of motion. CONCLUSION OF LAW The criteria for a rating of 20 percent doe a left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to January 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in May 2016 for additional development, which has been completed. In a January 2019 rating decision, the RO granted service connection for surgical scarring associated with the left ankle disability and assigned separate 10 and 0 percent disability ratings for scars. The Veteran did not appeal this decision and it is now final; therefore, the Board will not discuss ratings for the scars. Entitlement to a rating higher than 10 percent for a left ankle disability Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention 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; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). 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 diagnostic codes "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). 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. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran asserts that he is entitled to a higher rating of 20 percent for his left ankle disability. The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under the version of Diagnostic Code 5271 in effect prior to February 7, 2021, 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, Diagnostic Code 5271. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA 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. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. Under the version of Diagnostic Code 5271 in effect from February 7, 2021, marked and moderate limitation of motion are defined. Marked limitation of ankle motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion; moderate limitation of motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2021). The other diagnostic codes pertaining to the ankle are unchanged. The Veteran underwent a VA examination in March 2015. The examiner noted that the Veteran injured the left ankle when a heavy pallet fell on it in service in 1976. X-rays showed fracture of the left ankle. The Veteran was treated with open reduction internal fixation (ORIF) of the left ankle in 2004 with instrumentation. He had another surgery in the left ankle in September 2014 to remove some screws. He denied flare-ups. The Veteran described difficulty ambulating due to the ankle. Plantar flexion was 45 degrees and dorsiflexion was to 15 degrees with repetitive movement over a period of time and during flare-ups. There was pain on weight bearing. There was mild tenderness on palpation of the medial malleolus. The examiner noted weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion and interference with standing. Strength was reduced. The condition was productive of difficulty ambulating for prolonged periods of time. A May 2015 ankle Conditions Disability Benefits Questionnaire (DBQ) noted flare-ups of ankle pain described as 8/10, daily at the end of the workday. Plantar flexion was 25 degrees and dorsiflexion was to 10 degrees, with no additional loss of motion after repetitive use. There was pain with passive range of motion and on weight bearing. The examiner also noted instability, swelling and pain on movement. The Veteran required a cane and a brace for ambulation. The examiner noted that the condition was productive of pain with walking and climbing stairs. On VA examination in September 2016, the Veteran endorsed flare-ups manifested by intense left ankle pain and muscle spasms or cramps over the inside of the foot. Plantar flexion was 40 degrees and dorsiflexion was to 10 degrees after repetitive use over time, with no additional limitation of function or motion with repetitive movement or on flare-ups. There was pain with weight bearing and tenderness over the medial side of foot and left ankle, especially tender to palpation over the medial malleolus. Muscle strength was reduced. There was no ankylosis. No instability was noted. The Veteran required a Ritchie left ankle brace for ambulation. Occupationally, the left ankle disability interfered with his employment which required the Veteran to repeatedly climb and descend from the cab of a truck. Private and VA treatment records throughout the appeal reflect complaints of ankle pain and swelling. At times the pain was described as constant and rated as severe as 10/10. An MRI in November 2017, revealed severe posttraumatic left ankle arthritis and AVN left talus. In a medical statement in March 2018, the Veteran's treating physician indicated that based on recent February 2017 imaging studies, the Veteran had been advised that ankle fusion was appropriate. The Veteran underwent a VA examination in December 2018. He reported left ankle pain as severe as 9/10. He also described throbbing. Prior treatment included surgeries and multiple steroid injections, as well as a left ankle brace and medication. The Veteran, who remained employed full time as a truck driver, stated that the left ankle pain interfered with his ability to do any prolonged standing and walking, as well as climbing a truck. The Veteran denied flare-ups. Plantar flexion was to 30 degrees and dorsiflexion was to 10 degrees, with no additional limitation of function or motion with repetitive movement. The examiner noted no evidence of localized tenderness or pain on weight bearing. Muscle strength was normal with no instability. There was no ankylosis. The Veteran required regular use of a brace for ambulation. The Board finds the older version of the rating criteria are more favorable to this Veteran. Resolving reasonable doubt in the Veteran's favor, the evidence is at least in equipoise that he has marked limitation of motion of the left ankle under the previous version of Diagnostic Code 5271. The Board acknowledges that the most extreme limitation of motion shown on testing is a limitation of dorsiflexion from 0 to 10 degrees, and a May 2015 ankle DBQ noted plantar flexion limited to 25 degrees. While this level of limitation of motion alone cannot be considered marked, the Board notes that this Veteran also experiences ankle symptoms that are not necessarily demonstrated in range of motion testing. The May 2015 DBQ also noted ankle instability, swelling and pain on movement, although instability was not shown on objective testing on VA examination. There are multiple reports indicating that the Veteran required assistive devices for ambulation, including a brace/boot and a cane, and the Veteran reported walking with a limp. Examination at times showed tenderness on palpation with objective evidence of weakened movement, excess fatigability, pain on movement, reduced strength, swelling and disturbance of locomotion. At his April 2021 Board hearing, the Veteran testified that his ankle pain had worsened significantly since he was most recently examined in 2018. He also related nightly swelling of the ankle and limping. He now required a cane and a boot for ambulation. He asserted that his ankle severely limited his ability to function thus equating to marked limitation of motion. Additionally, treating physicians and VA examiners have determined that the left ankle disability was productive of difficulty ambulating for prolonged periods of time, standing and climbing, and there is radiographic evidence of severe posttraumatic left ankle arthritis. In this case, the Board notes that reports of increased pain and swelling, with some instability and pain on weight bearing, limits his motion more severely than is showed through goniometer testing. As the Veteran's symptoms significantly impair his ambulation, which does seem contemplated by a distinctive or emphasized character, the Board will resolve doubt in the Veteran's favor and find that the motion of his ankle has been markedly limited, as contemplated by the previous version of rating criteria. As such, the Veteran is entitled to a rating of 20 percent. A rating higher than 20 percent is not available under Diagnostic Code 5271 under either the former or the revised rating. There is no evidence in the record of ankylosis of the ankle, which means that a higher rating is not available under Diagnostic Cod 5270. 38 C.F.R. § 4.71a, Diagnostic Code 5270. For the foregoing reasons, after resolving any reasonable doubt in favor of the Veteran, the Board finds that a rating of 20 percent, but no higher, for his left ankle disability is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include the treatment and examination reports, show that while the Veteran's service connected left ankle disability is productive of some impairment, the Veteran remains employed full-time. In the event that a claim of a TDIU was implicitly raised, review of the evidence does not reflect that the Veteran meets the required percentage criteria. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.