Citation Nr: 21030194 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-13 493 DATE: May 18, 2021 ORDER Entitlement to an initial increased schedular disability rating of 20 percent for right ankle sprain is granted. FINDING OF FACT The Veteran's ankle disability, when considered on use and during flare-ups, is productive of marked limitation of motion. CONCLUSION OF LAW The criteria for an initial 20 percent schedular rating for right ankle disability are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271, as in effect prior to February 2021. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in November 2008, and April 2009 to March 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge on March 2019. A transcript of the hearing is in the Veteran's file This matter was previously before the Board in September 2019, at which time it was remanded for a new VA examination. A review of the record reveals that there has been substantial compliance with the Board's prior remand directives as to the issues decided below. See Stegall v. West, 11 Vet. App. 265 (1998). 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 as a result 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. 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, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial disability rating in excess of 10 percent for right ankle disability The Veteran's right ankle disability is currently rated 10 percent disabling under 38 C.F.R. § 4.71a, DC 5271 for limitation of motion from March 8, 2014, then 100 percent from May 11, 2016, based on surgical treatment necessitating convalescence and 10 percent from July 1, 2016. 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. Prior to the regulatory change, DC 5271, applicable to limitation of motion of the ankle, provided for a 10 percent rating for a "moderate" limitation of motion, and a 20 percent rating for a "marked" limitation of motion. 38 C.F.R. § 4.71a. The words "moderate" and "marked" are not defined in the VA Schedule for Rating Disabilities. Clinicians' use of such terms, although an element that the Board will consider, is not dispositive of the issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in order to ensure that its decisions are equitable and just. 38 C.F.R. § 4.6. Nevertheless, 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. As of February 7, 2021, under the amended criteria, DC 5271 provides definitions for "moderate" and "marked" and a 10 percent disability rating for moderate limitation of motion of the ankle is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A 20 percent disability rating for marked limitation of motion of the ankle is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Board notes that a normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination in January 2015. She reported constant pain deep within the right ankle that felt like "knives jabbing in and being twisted." She stated a number of things cause pain during flare-ups, including horseback riding, squatting, walking, and driving. On range of motion, the Veteran had dorsiflexion from to 20 degrees and plantar flexion from to 30 degrees. There was evidence of pain with weight bearing. The examiner could not describe functional loss with repetitive use as there were no clinical records showing further decreased functioning over time. The Veteran reported flare-ups with walking, riding horses, stairs, and squatting, which she reported varied in severity and duration. The examiner also could not describe functional loss during flare-ups without speculation, as the ongoing records did not show further loss of range of motion with flare-ups. Muscle strength was normal. There was no muscle atrophy, ankylosis or instability. The examiner noted that the Veteran regularly used a lace up brace for right ankle pain. The Veteran reported that she limps, but it does not help her pain. She also tries to have others drive and she keeps her shopping trips short. She stated that she cannot work out, use a bicycle, or go on long walks. She also takes quick showers or forgoes them due to standing on her ankle. VA treatment records show her right ankle was examined in June 2015, where she noted pain. Upon examination, she had full range of motion of both ankles with flexion and extension. She was referred to a podiatry clinic for follow-up, where she noted worsening pain which she related to the vibration from an MRI machine during her evaluation in September 2015. She was diagnosed with sinus tarsitis and chronic right ankle pain post sprain and given an injection. In October 2015, she noted that she initially had pain after the injection, but she no longer seemed to have much pain when stationary. She still reported some difficulty with stairs, walking and driving. In her March 2016 Form 9, she stated she had chronic pain, disturbance of locomotion, interferences with standing or weight-bearing for extended periods of time and very limited range of motion. She stated the more her ankle moves, the more pain she experiences, and her ankle is weak, causing her to move with impaired coordination. The steroid injections help reduce pain only temporarily. VA treatment records show the Veteran underwent a Modified Brostrom ankle procedure for her right ankle in May 2016. This was to address subtalar pain, and ankle joint instability. After the Veteran's right ankle surgery in May 2016, she was awarded a 100 percent disability rating for convalescence until July 1, 2016, at which time her disability rating was again rated at 10 percent. The Veteran was afforded another VA examination in October 2016, where she was diagnosed with a degenerative arthritis in her right ankle. She reported improvement of her right ankle pain since surgery but continued to have increased discomfort with aggravations or increased activity. She had no restrictions from Podiatry and was able to advance activities as tolerated. She rated her baseline ankle discomfort as 3 out of 10 and when aggravated up to 5 or 6 out of 10. Aggravating factors included walking more than three blocks, running, stairs, driving, vehicle vibration, uneven ground, repetitive motions, and extended standing. During flare-ups, she reported decreased range of motion and discomfort. Range of motion testing revealed dorsiflexion of 16 degrees and plantar flexion of 30 degrees. Pain was noted with motion and with weight bearing. The examiner could not determine any additional loss of motion due to repetitive use or flare-ups without resorting to mere speculation. The examiner however, noted that the residuals of her ankle surgery resulted in decreased range of motion and discomfort. The Veteran as afforded another VA examination in July 2017. On range of motion, the Veteran had dorsiflexion from to 15 degrees and plantar flexion from to 35 degrees. There was evidence of pain with weight bearing and non-weight-bearing. Passive range of motion was the same as active range of motion. The examiner was unable to say whether there was additional functional loss after repetitive use or flare-ups. The examiner also noted less movement than normal, swelling, disturbance of locomotion and that the Veteran walked with a slight limp when arising from a chair. There was a reduction in muscle strength at 4/5. There was no muscle atrophy or ankylosis. There was ankle instability suspected but the Anterior Drawer Test and Talar Tilt Test were both negative. The examiner noted the residuals for the May 2016 surgery were decreased range of motion, pain and swelling. The Veteran used a brace occasionally. The functional impact of the Veteran's right ankle condition was that her ability to walk long distances or on uneven ground is impaired. In December 2017, VA treatment records show she continued to have pain and she was encouraged to stretch her foot if able, but she noted that status post ankle surgery, she has not been able to " bend her ankle back more than a 90 degree angle." Notably, the right heel was currently without tenderness.. During the March 2019 Board hearing, the Veteran testified that her ankle condition is worse than it was previously. She has occasional flare-ups that are very painful that she cannot bear weight on it and can only go ten steps limping. It limits her ability to do many normal things in life, such as standing while taking a shower. The Veteran was afforded another VA examination in February 2020, where she was diagnosed with subtalar ligament tear. She reported that surgery reduced her range of motion. She stated flare-ups occur about once a week and are severe and last seconds to two days. She uses a brace to alleviate the flare-ups, but its use is limited due to the effect of circulation on her foot. She reported functional impairment of walking on uneven surfaces, standing for more than 10 minutes or for more than 14 mile, she cannot run, hike, bicycle, ride a horse or flutter kick when swimming. She feels like her ankle will give out when going downstairs and slippery surfaces increase pain. Range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion of 25 degrees. Pain was noted with active and passive motion and with weight bearing and non-weight bearing. Additional loss of motion due to repetitive use was dorsiflexion to 10 degrees and plantar flexion of 20 degrees and with flare-ups, dorsiflexion to 5 degrees and plantar flexion of 15 degrees. Muscle strength was normal and there was no ankylosis. The Talar Tilt test revealed laxity compared with the opposite side. An October 2020 VA examiner confirmed that her subtalar ligament tear, as diagnosed by the February 2020 VA examiner, was a progression of her service connected right ankle sprain. Having considered the evidence of record under the rating criteria outline above, the Board finds that an increased schedular evaluation for the Veteran's ankle disability for marked limitation of motion is warranted. Notably, the Veteran complains of pain and instability, with diminished range of motion on use. Significantly, during most of the appeal period, evaluators did not estimate range of motion during a flare-up, but when that was done in 2020, dorsiflexion was only to 5 degrees and plantar flexion was to 15 degrees. That would represent a nearly 75% reduction in normal dorsiflexion and a nearly 66% loss of normal plantar flexion range of motion. With the understanding that range of motion loss during a flare up was present throughout the appeal period, and with flare-ups apparently occurring during routine activities, the Board considers it reasonable to find this represented marked limitation of motion. Accordingly, an increased 20 percent evaluation for the Veteran's ankle disability under the more favorable criteria in effect prior to February 2021 is granted. Since this conclusion affords the Veteran a greater benefit than would be permitted if the criteria that went into effect in February 2021 were considered, (as the new criteria would require greater limitation of motion to be considered 'marked'), no further discussion of the new criteria is necessary. Further, as the record does not show the presence of ankylosis, a rating in excess of 20 percent is not indicated. See DC 5279. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.