Citation Nr: 21039760 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-19 077 DATE: July 1, 2021 ORDER For the entire initial rating period on appeal, a 20 percent rating, but not higher, for a right ankle disability is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, the right ankle disability manifested by symptoms that more nearly approximate marked limitation of motion. CONCLUSION OF LAW For the entire initial rating period on appeal, the criteria for a 20 percent rating, but not higher, for the service-connected right ankle disability are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to June 1988. This appeal comes before the Board of Veteran's Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which assigned an initial noncompensable evaluation for the right ankle disability, effective from November 4, 2011. In October 2016, the RO assigned a 10 percent evaluation effective from March 25, 2016. The Veteran testified at a March 2019 Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In August 2019, the Board, in pertinent part, denied entitlement to an initial rating higher than 10 percent for a right ankle disability. The Veteran appealed this denied claim. In September 2020, the United States Court of Veterans Appeals for Veterans Claims (Court) granted a September 2020 Joint Motion for Remand (JMR) by counsel for the Veteran and VA, vacated the Board's August 2019 decision as to the issue of entitlement to an initial rating higher than 10 percent for a right ankle disability, and remanded this matter to the Board for development consistent with the JMR. In February 2021, the Board remanded the Veteran's claim to provide the Veteran with a VA examination for the right ankle disability. The case has since returned to the Board for further appellate consideration. Initial Rating for a Right Ankle Disability Rating Criteria Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board notes that, during the pendency of the appeal, VA revised the rating criteria for Diagnostic Code 5271, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110 (g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran's right ankle disability is currently assigned a noncompensable evaluation effective from November 4, 2011, and a 10 percent rating effective from March 25 2016, pursuant to DC 5271 for limitation of motion of the ankle. Under the former rating criteria for DC 5271, the diagnostic code for limitation of motion of the ankle, a 10 percent rating is warranted with "moderate" limitation of motion and a 20 percent rating where there is "marked" limitation of motion. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Effective February 7, 2021, DC 5271 was revised. Under the new criteria, a 10 percent rating is warranted for moderate limitation of motion defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and a 20 percent rating is warranted for marked limitation of motion defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5271). Additionally, 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 background 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). Right Ankle Rating Analysis For the reasons expressed below, the Board finds that the criteria for a 20 percent rating for the right ankle disability is approximated for the entire rating period on appeal. In a November 2011 statement in support of claim, the Veteran noted that by the end of a normal workday, his ankle mis-aligned. In November 2011, the Veteran underwent a VA ankle conditions examination, at which time the examiner noted that the Veteran did not have a current diagnosis of a right ankle disability but noted a history of giving out. The Veteran reported that his right ankle gave way eight to nine times a year, but that he did not experience day to day problems with his right ankle. Physical examination of the right ankle revealed normal range of motion with dorsiflexion to 20 degrees or greater and plantar flexion to 45 degrees or greater, both with no objective evidence of painful motion. There was no additional limitation of range of motion after repetitive-use testing, as well as no functional loss or functional impairment. Muscle strength testing was normal, and there was no localized tenderness or pain on palpation of the ankle. Joint stability testing was normal. The Veteran did not have ankylosis of the ankle, subtalar, or tarsal joints. He did not currently have, or ever had, shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, or a talectomy (astragalectomy). He has not had any type of ankle surgery. Imaging studies of the ankle revealed no abnormal findings. The Veteran did not use an assistive device. During an October 2012 DRO hearing, the Veteran testified that his right ankle would turn outwards over the course of a long day. He described experiencing right ankle pain and using an ankle brace. He also described his ankle "rolling," causing him to fall and sprain the ankle. A rock in a parking lot could cause his ankle to shift and sprain. He said such sprains sometimes resulted in him missing a day or two at work and that he was very close to need to use a cane. A March 2013 VA treatment note indicated that the Veteran reported that his ankles hurt and that he had to take ibuprofen in order to be able to move. During a July 2014 Board hearing, the Veteran testified that he fell a couple of times a month due, in part, to his right ankle disability. In an undated statement received by VA in August 2014, the Veteran's treating physician noted that because he was on his feet for most of the day, it caused even more unnatural wear to his ankle. This was due to the lack of an intact anterior cruciate ligament that adversely affected his gait. In March 2016, the Veteran underwent an additional VA ankle conditions examination at which time the examiner rendered a diagnosis of instability of the right ankle. The Veteran reported that his chronic right ankle pain had worsened over the years and that the ankle continued to roll repetitively. He noted daily pain with activities such as getting in and out of a truck and driving. He again noted that his ankle rolled easily, including "just stepping on a little rock." He treated flare-ups with rest and ice and used an ankle brace at times. In terms of functional impairment, he reported that the ankle slowed him down and caused him to miss about 12 days of work in the past year due to flare-ups of right ankle pain. Upon physical examination, range of motion of the right ankle revealed dorsiflexion to 10 degrees and plantar flexion to 25 degrees. The examiner noted that pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing and pain on palpation of the anterior joint line. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions that did not result in additional loss of function or range of motion. The examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. He concluded that it was not possible to state without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or with repeated use over a period of time as the Veteran was not experiencing a flare-up during the time of examination. Muscle strength testing was normal throughout (5/5) with no evidence of reduction in muscle strength and/or muscle atrophy. There was no ankylosis. Ankle instability/dislocation was suspected but there was no laxity compared to the opposite side on both Anterior Drawer and Talar Tilt tests. He did not currently have, or ever had, shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, or a talectomy (astragalectomy). Imaging studies were performed, and there was no evidence of arthritis or any other significant diagnostic test findings or results. The functional impact of the Veteran's right ankle disability was that the Veteran was slowed with such activities as prolonged walking. The Veteran used a brace occasionally. In October 2016, the Veteran underwent an additional VA ankle conditions examination. On physical examination, right ankle dorsiflexion was 15 degrees and plantar flexion was 25 degrees. Pain was noted on plantar flexion but did not result in or cause functional loss. There was mild lateral malleolus tenderness of the right ankle on examination. There was no additional loss of function or range of motion of the right ankle after three repetitions. The Veteran was examined immediately after repetitive use of the right ankle over time, but pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The right ankle was not examined during a flare-up, and the examination was neither medically consistent or inconsistent with the Veteran's statements regarding functional loss during flare-ups or with repetitive use over time. However, the examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability of the right ankle with flare-up. Right ankle muscle strength was normal and there was no muscle atrophy. There was no ankylosis of the right ankle. While instability of the right ankle was suspected, the Anterior Drawer test was negative. The Veteran did not currently have, or ever had, shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, or a talectomy (astragalectomy). The Veteran did not report using any assistive devices. During the March 2019 Board videoconference hearing, the Veteran testified that the November 2011 VA examination was inadequate as the examiner did not spend adequate time examining him and most of the examination time was spent obtaining x-rays. The Veteran stated that his ankle hurt in November 2011, when he first filed a claim for service connection for the right ankle disability. He stated that his right ankle pain had not worsened over time but had been consistent since the beginning. He stated that the current 10 percent rating for the right ankle disability was correct, but that it should have been granted from the date of the initial claim. In June 2020, the Veteran again underwent a VA ankle conditions examination where the examiner rendered a diagnosis of instability of the right ankle. The Veteran reported rolling his ankle multiple times since 1989, pain and weakness in his right ankle, and of a give out feeling in the right ankle. During flare-ups, his ankle will give out causing him to roll it; he then has swelling and pain and needs to wear a brace for three to five days to help with pain. Upon physical examination, active and passive range of motion of the right ankle revealed dorsiflexion to 15 degrees and plantar flexion to 40 degrees. The examiner noted that pain was noted on active range of motion examination but did not cause functional loss. There was no evidence of pain with passive range of motion, on weight bearing or non-weight bearing, or on palpation. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions that did not result in additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time or during flare-ups and the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and flare-ups. The examiner did note that pain caused functional loss with repeated use over time and during flare-ups resulting in dorsiflexion to 15 degrees, and plantar flexion to 40 degrees. Muscle strength testing was normal throughout (5/5) with no evidence of reduction in muscle strength and/or muscle atrophy. There was no ankylosis. Right ankle instability/dislocation was suspected; there was no laxity compared to the opposite side on the Anterior Drawer test but there was laxity on the Talar Tilt test. The Veteran never had shin splints and there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the right ankle disability. The Veteran occasionally used braces or crutches, in part due to his right ankle giving way or flare-ups. The functional impact of the Veteran's right ankle disability was that he would be unable to stand or walk for long periods of time. In May 2021, the Veteran was afforded another VA ankle conditions examination, at which time the examiner rendered a diagnosis of right ankle instability. The Veteran reported stiffness and pain in flexing, and monthly sprains which he currently treated with ice and rest. He reported that his ankle disability was one of the reasons for early retirement and 100% disability with the US Navy. The Veteran reported having functional loss/impairment, which he described no longer having painless movement. Upon physical examination, range of motion of the right ankle revealed dorsiflexion to 0 degrees and plantar flexion to 45 degrees. The examiner noted that pain was noted on passive motion of dorsiflexion with no additional loss of range of motion. There was evidence of pain on palpation of the lateral ankle of mild severity. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions that did not result in additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time or during flare-ups. The examiner indicated that evidence from the Veteran did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with repeated use over time or during flare-ups. There was no muscle atrophy or ankylosis of the right ankle or any ankle joints. Anterior Drawer and Talar Tilt tests were negative. The Veteran never had shin splints and there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the right ankle disability. No assistive devices were reported as a normal mode of locomotion. The examiner reported that the range of motion testing was invalid as the Veteran was able to demonstrate a much greater range of motion with other portions of the examination that what was demonstrated on the formal range of motion testing. On review, and resolving reasonable doubt in the Veteran's favor, a 20 percent rating for a right ankle disability is approximated for the entire rating period on appeal. As discussed above, the Veteran has competently and repeatedly reported flare-ups and instability as week as difficulty with prolonged walking. The probative evidence additionally showed occasional ankle tenderness with pain on palpation and decreased range of motion. Furthermore, the Veteran has consistently reported "giving way" and rolling of the ankle resulting in falls that required the use of an ankle brace. Taking into consideration the Veteran's competent reports of flare-ups and instability accompanied by pain and the need to use an ankle brace, the Board finds the above symptoms to more nearly approximate a marked limitation of ankle motion during a flare-up and/or with repeated use over a period of time, which warrants a 20 percent disability rating throughout the appeal period. In addition, although the 2021 examiner indicated that range of motion testing was invalid due to the discrepancy between formal and informal range of motion testing, the recorded degrees met the criteria for a 20 percent rating under the new rating criteria. A 20 percent rating is the maximum rating under DC 5271 (limitation of motion of the ankle). The evidence does not show ankylosis of the ankle or any other pathology that would warrant a separate rating under a different diagnostic code. In this regard, the Board finds that all of the Veteran's symptoms are properly contemplated by the criteria for a 20 percent rating for marked limitation of motion of the right ankle. Further, because the right ankle disability has been assigned the maximum rating based on limitation of motion, the DeLuca criteria are not applicable. The highest rating possible has been assigned under the Schedule for Rating Disabilities. Furthermore, the Board notes that the Veteran is also in receipt of separate ratings for pes planus and right lower leg peripheral neuropathy, which contemplates for other symptoms such as decreased sensation in the ankle (which was noted in the peripheral nerves VAX in July 2015). Finally, the Board notes that TDIU was granted in July 2020 by the RO, effective March 13, 2019, the day following the Veteran's last day of work. The Board notes that neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). A. Yaffe Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.