Citation Nr: 21039783 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-15 047 DATE: July 1, 2021 ORDER Entitlement to a rating higher than 20 percent for right subtalar arthrosis, tarsal tunnel syndrome is denied. FINDING OF FACT The Veteran is currently in receipt of the highest disability rating under Diagnostic Code 5271 for right subtalar arthrosis, tarsal tunnel syndrome and the evidence does not reflect that the Veteran has ankylosis or functional ankylosis of the right ankle. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for right subtalar arthrosis, tarsal tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5271 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from November 1985 to August 1993. The Veteran appeals the denial of a rating higher than 20 for his right subtalar arthrosis, tarsal tunnel syndrome. The Veteran received a temporary total disability rating under 38 C.F.R. § 4.30 from June 13, 2012 to September 30, 2012. Thereafter, his 20 percent rating continued. He argues that rating higher than 20 percent is warranted for his service-connected right ankle disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127 ; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. 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. 38 C.F.R. § 4.59. The Veteran's right subtalar arthrosis, tarsal tunnel syndrome is rated under Diagnostic Codes 5010- 5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. Diagnostic Code 5010 refers to traumatic arthritis and is rated based upon limitation of motion of the affected part. Diagnostic Code 5271 addresses limitation of motion of the ankle. The Board notes there were recent changes to the regulations pertaining to musculoskeletal disabilities, to include changes to DCs 5010-5271. These changes became effective February 7, 2021. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Prior to February 7, 2021, DC 5010 was rated as traumatic arthritis, and provided for an evaluation of an affected joint under DC 5003, for degenerative arthritis. Degenerative arthritis confirmed by x-ray provides for evaluation based on limitation of motion of the affected joint, with a minimum 10 percent rating for each major joint or group of joints. 38 C.F.R. § 4.71a, DCs 5003, 5010 (in effect prior to February 7, 2021). Under the revised version of DC 5010, traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. DC 5271 was changed in order to provide a definition for moderate and marked limitation of motion of the ankle. Prior to February 7, 2021, DC 5271 provided a 10 percent rating for moderate limited motion of the ankle, and the maximum 20 percent rating was allowed for marked limited motion of the ankle. Moderate and marked were not defined by these prior rating criteria. Under the revised rating criteria, DC 5271 continues to allow a 10 percent rating for moderate limited motion of the ankle and a 20 percent rating for marked limitation of the ankle. The new criteria, however, defines moderate limited motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion; and defines marked limited motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. With regard to the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5271, normal dorsiflexion of the ankle is from 0 degrees to 20 degrees. Normal plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. After review of the record, the Board finds that a rating higher than 20 percent is not warranted for right subtalar arthrosis, tarsal tunnel syndrome. In this regard, a 20 percent rating is the maximum rating available under DC 5271 under the old and revised rating criteria. This rating contemplates the Veteran's marked limitation of motion caused by his service-connected right ankle disability symptoms, to include pain. A higher rating is only available for the ankle when ankylosis is present, however, as explained below the lay and medical evidence of record does not demonstrate ankylosis and/or the functional equivalent of ankylosis at any time during the appeal period. To that end, during the July 2011 VA examination the Veteran reported pain, stiffness, and decreased joint motion. Range of motion testing revealed 3 degrees of dorsiflexion and 40 degrees of plantar flexion with painful motion. In June 2012, the Veteran had right subtalar fusion surgery. A May 2017 outpatient treatment record disclosed 0 to 10 degrees of dorsiflexion and plantarflexion. During the February 2018 VA examination, the Veteran was diagnosed with status post right subtalar fusion and debridement of talonavicular joint. The Veteran reported an increase in limitation of use due to pain which required frequent breaks to stretch and rest his ankle. He reported that he could not move the right ankle as well as the left. Examination disclosed 0 to 10 degrees of dorsiflexion and plantarflexion. Pain was noted on examination but it did not result in/cause functional loss. There was no evidence of pain with weightbearing. The Board notes, however, that the VA examiner was unable to determine without resort to speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time because the Veteran was not examined after repeated use over a period of time. There was no showing of ankylosis. During the November 2019 VA examination, the Veteran stated that with fusion he has great difficulty with walking great distances. He stated that the pain limited his ability to walk greater than 100 feet and he had difficulty with standing greater than 4-5 mins without pain. Examination disclosed 0 to 10 degrees of dorsiflexion and plantarflexion. Pain was noted on examination but it did not result in/cause functional loss. There was no additional loss of function or range of motion after three repetition. The Board notes, however, that again the VA examiner was unable to determine without resort to speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time because the Veteran was not examined after repeated use over a period of time. There was no showing of ankylosis. The Veteran was afforded another VA examination in March 2021. At this time, the Veteran reported flare-ups of the right ankle that occur daily. The right ankle flare-ups were described as moderate, potentially lasting for hour, and were precipitated by prolonged standing, walking, climbing and/or squatting. The right ankle flare-ups were noted to be alleviated by rest and medication. Examination disclosed 0 to 10 degrees of dorsiflexion and 0 to 15 degrees of plantarflexion. Pain was noted on examination but it did not result in/cause functional loss. Examination disclosed 0 to 10 degrees of dorsiflexion and plantarflexion with repetitive-use testing with at least three repetitions. The estimated range of motion in degrees for the joint immediately after repeated use overtime, based on information procured from relevant sources including the lay statements of the Veteran, was 5 degrees of dorsiflexion and 10 degrees of plantarflexion. The estimated range of motion in degrees for the joint during flare-ups, based on information procured from relevant sources including the lay statements of the Veteran, 5 degrees of dorsiflexion and 5 degrees of plantarflexion. There was no showing of ankylosis. Ankle stiffness, pain, and difficulty with prolonged walking or climbing stairs were noted. Here, the Board notes that the VA examinations has consistently found that the Veteran's right ankle is not ankylosed. The Board also finds that the functional equivalent of ankylosis of the right ankle is not shown by the record, i.e., functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board is mindful that during the course of this appeal the Veteran has reported right ankle pain, and limitations in walking, standing and with physical activity due to his right ankle. However, the medical and lay evidence does not suggest that the severity of the Veteran's service-connected right ankle disability amounts to the functional equivalent of ankylosis. Notably, the VA examinations and outpatient treatment records have demonstrated that the Veteran retains at least some range of motion in the right ankle. Although there is pain and difficulty with prolonged activity, the evidence indicates that he is still able to stand, walk and climb in short durations. It is also noted that right ankle flare-ups were noted to be alleviated by rest and medication. While the Veteran's range of motion may be limited even more so during flare ups of the right ankle, the Board cannot conclude that the functional equivalent of ankylosis of the right ankle has been shown. In sum, the currently assigned 20 percent rating is the maximum rating available under DCs 5010-5271 and ankylosis and/or the functional equivalent of ankylosis of the right ankle is not shown by the evidence. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered whether a higher rating by analogy is available through another other diagnostic code that considers similar symptoms, but has found none. In this case, the Board finds no other provision upon which to assign a rating higher than 20 percent disabling for right subtalar arthrosis, tarsal tunnel syndrome. Moreover, the Veteran has not reported other symptoms not contemplated by these rating criteria. Accordingly, the claim for a rating higher than 20 percent disabling for right subtalar arthrosis, tarsal tunnel syndrome is denied. The Board also notes that an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. While the Veteran's disability causes some occupational limitations, the evidence does not show and it has not been alleged that the Veteran's disabilities render him unemployable. Thus, the Board concludes that the issue of entitlement to TDIU has not been reasonably raised by the record. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.