Citation Nr: 21030025 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-53 768 DATE: May 17, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a right tibotaler joint arthritis is denied. Entitlement to an initial rating in excess of 10 percent for a left ankle osteoarthritis of the tibiotalar joint is denied. FINDINGS OF FACT 1. The Veteran's right tibotaler joint arthritis is manifested by plantar flexion of 28 degrees and dorsiflexion of 8 degrees, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy. 2. The Veteran's left ankle osteoarthritis of the tibiotalar joint is manifested plantar flexion of 28 degrees and dorsiflexion of 8 degrees, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right tibotaler joint arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5271. 2. The criteria for a rating in excess of 10 percent for left ankle osteoarthritis of the tibiotalar joint have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1979 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board denied these matters for an increased rating. Subsequently, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans' Claims (Court), which pursuant to a July 2020 Joint Motion for Partial Remand (JMPR), vacated the Board's decision to the extent the Veteran's claims were denied, and remanded the matter for further consideration. In December 2020, pursuant to the JMPR, the Board remanded these matters for a new VA examination to determine the severity of the Veteran's condition. An examination was conducted in February 2021. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters now return for further appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The 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, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Ankle disabilities are rated pursuant to Diagnostic Codes 5270 through 5274. Degenerative arthritis is rated under Diagnostic Code 5003 and traumatic arthritis is rated under Diagnostic Code 5010. All applicable rating criteria are to be considered, in addition to any Diagnostic Codes under which a disability is already rated. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the claims file has a February 18, 2021 VA examination for his right and left ankle disabilities that was subsequent to the revised rating effective date of February 7, 2021. Therefore, the February 2021 musculoskeletal criteria apply to the Veteran's claims on appeal; and the appropriate criteria is discussed below. A 10 percent rating under Diagnostic Code 5271 requires "moderate" limitation of motion and a 20 percent rating requires "marked" limitation of motion. 38 C.F.R. § 4.71a under both the former and revised diagnostic code. Under the revised diagnostic code, marked limitation of ankle motion constitutes less than 5 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). Under Diagnostic Code 5003, degenerative arthritis is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as: A 10 percent rating is awarded with X-ray evidence of involvement of two or more major joints or two or more minor joint groups; a 20 percent rating is awarded when the disorder manifests in occasional incapacitating episodes. In this case, there is evidence of limitation of motion, so the Veteran's bilateral ankle disabilities will be rated under Diagnostic Code 5271. Under the amended Diagnostic Code 5010, post-traumatic arthritis is to be rated as limitation of motion, dislocation or other specified instability under the affected joint namely, in this case, Diagnostic Code 5271 as discussed above. See also 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2020). 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's disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. 1. Entitlement to an initial rating in excess of 10 percent for right tibotaler joint arthritis. 2. Entitlement to an initial rating in excess of 10 percent for left ankle osteoarthritis of the tibiotalar joint. The Veteran generally asserts that a higher rating is warranted for his right and left ankle disabilities. His right and left ankle disabilities are rated as 10 percent disabling, in each extremity effective October 11, 2013 and February 08, 2017, respectively, under Diagnostic Codes 5003-5271. The Veteran was afforded a VA examination for both ankles in April 2017. The examiner confirmed a diagnosis of tibotaler joint arthritis in his right ankle and osteoarthritis for the left ankle. The Veteran reported that he experienced pain and swelling in both ankles. Initially, his right ankle was in pain and then his left ankle started hurting. He confirmed flare-ups accompanied by intense pain. Upon physical examination, his right ankle plantar flexion was not less than 40 degrees and his dorsiflexion was not less than 20 degrees, with pain on weight-bearing and localized tenderness. Measurements for the left ankle plantar flexion was not less than 40 degrees and dorsiflexion was not less than 10 degrees, without pain on weight-bearing, but localized tenderness. Repetitive-use testing was not performed with the examiner stating that it is not possible to determine without resorting to mere speculation, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner also noted that she could not make comments about additional loss of range of motion, fatigue, pain, weakness or incoordination during flares without resorting to mere speculation, because the Veteran denied having a flare up during the examination. Muscle strength was normal, joint stability was normal, there was no ankylosis, and there were no additional ankle conditions. The Veteran did not have any ankle joint replacements or any other ankle surgical interventions. He constantly used a cane for assistance. X-rays showed left ankle degenerative or traumatic arthritis. The examiner noted that the Veteran's ankle conditions made him unable to perform tasks that require standing more than two hours, walking more than 20 minutes, and needing to get breaks to decrease pain from flare ups. Also, the pain in his ankles have been too prohibitive for him to work about one day every two weeks for last six months. There was evidence of pain on passive range of motion and on non-weight bearing. The December 2020 Board decision found this examination to be inadequate because it did apply the Court's holdings in Correia and Sharp. Thus, the Veteran was afforded a new VA examination for both ankles in February 2021. At the February 2021 VA examination, the Veteran reported that he experienced constant sharp pain in both ankles. He confirmed flare-ups in the form of sharp throbbing pain. Upon physical examination, his right and left ankle plantar flexion was not less than 30 degrees and dorsiflexion was not less than 10 degrees, with no evidence of localized tenderness or pain on palpation. Measurements for the left ankle was the same with evidence of localized tenderness. Repetitive-use testing resulted in both ankles plantar flexion being not less than 28 degrees and dorsiflexion not less than 8 degrees. Active and passive range of motion was the same. The examiner also noted there was no additional functional loss of range of motion due to fatigue, pain, weakness and incoordination. Joint stability was normal, there was no ankylosis, and there were no additional ankle conditions. The Veteran did not have any ankle joint replacements or any other ankle surgical interventions. He constantly used a cane for assistance. X-rays showed left ankle and right ankle degenerative or traumatic arthritis. The Veteran stated during examination that the pain in his ankles was worse while standing and walking for prolonged periods of time. He stated that at work, he has to take breaks in order to help reduce the pain and kneeling down and squatting also increases the pain in his ankles due to the pressure put on his ankles. VA treatment records have also been associated with the Veteran's claims file. In summary, these records reflect the Veteran complained of right and left ankle pain for which he had ongoing treatment. Throughout the period on appeal, the Veteran's right and left ankle condition manifested as moderate impairment of range of motion without marked impairment of range of motion. The evidence shows that the Veteran's dorsiflexion was not less than 8 degrees and his plantar flexion was not less than 28 degrees, both at its worst during flare-ups in the February 2021 VA examination. Moreover, there was no additional loss of function or range of motion found after repetitive use testing. Although pain was noted during the VA examination, such did not result in or cause additional functional loss even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, supra. Here, the VA treatment records, and VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, etc, that is not already contemplated by the assigned 10 percent rating. Burton v. Shinseki, supra; 38 C.F.R. § 4.59. Accordingly, higher ratings are not warranted for the Veteran's right and left ankle condition even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination, because his dorsiflexion did not reach less than 5 degrees and his plantar flexion did not reach less than 10 degrees on either ankle. Furthermore, as there is no evidence of ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy, higher or separate ratings under Diagnostic Codes 5270, 5272, 5273, and 5274 are not warranted. Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the April 2017 VA examination did not provide the Correia and Sharp criteria as described above and as determined in the December 2020 JMPR. The Veteran reported flare-ups of pain but did not report additional range of motion restrictions during the February 2021 VA examination. Furthermore, February 2021 VA examination reflected measurements for active and passive range of motion as well as range of motion testing in weight-bearing and nonweight-bearing. Therefore, the February 2021 VA examination is adequate for rating purposes. The Board also acknowledges the Veteran's sincerely held belief that his right and left ankle symptoms are more severe than currently contemplated. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has considered whether a staged rating under Hart, supra, are appropriate for the Veteran's service-connected right and left ankle disabilities; however, the Board finds that his symptomatology has been stable throughout this appeal period. Therefore, assigning staged ratings for such disability is not warranted. The Veteran has not raised any other issues, and no other issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to individual unemployability (TDIU) is part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his ankle disabilities. In fact, the Veteran reports that he is still working, although he experiences flare-ups at work. Therefore, the Board finds that a TDIU is not raised by the Veteran or reasonably raised by the record in connection with his initial rating claim decided herein and, consequently, no further consideration of such is necessary at this time. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the right tibotaler joint arthritis and left ankle osteoarthritis of the tibiotalar joint. As the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the conditions, the benefit-of-the-doubt doctrine is not for application, and the appeals must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.