Citation Nr: 21040209 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 12-16 680A DATE: July 2, 2021 ORDER Effective July 1, 2009, a 10 percent rating, but no higher, for residuals of right ankle arthrotomy (hereinafter right ankle disability) is granted, but a rating in excess of 10 percent from July 1, 2015 to August 23, 2020 is denied; but as of to August 24, 2020, a maximum 20 percent rating thereafter for a right ankle disability is granted. FINDINGS OF FACT 1. Effective July 1, 2009, the right ankle disability was manifested by painful range of motion and later limitation of motion to a moderate severity. 2. As of August 24, 2020, the right ankle disability was manifested by limitation of motion to a marked severity but never by ankylosis. CONCLUSIONS OF LAW 1. Effective July 1, 2009, the criteria for a 10 percent rating for a right ankle disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code (DC) 5271. 2. From July 1, 2015 to August 23, 2020, the criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code (DC) 5271. 3. As of August 24, 2020, the criteria for a 20 percent rating for a right ankle disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2017. The hearing transcript is of record. The Board remanded the claim in February 2018, March 2020, and February 2021 for further development by the RO. The case has been returned to the Board for further appellate action. The Veteran seeks a higher rating for his right ankle disability. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service- connected disability exhibits symptoms that would warrant different ratings). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's right ankle disability has been rated as noncompensable prior to July 1, 2015, and as 10 percent disabling thereafter under DC 5271. Under this diagnostic code, a 10 percent rating is allowed when there is moderate limitation of motion, and a maximum 20 percent rating is allowed when there is marked limitation of motion. Normal range of motion for the ankle on dorsiflexion is to 20 degrees and to 45 degrees on plantarflexion. See 38 C.F.R. § 4.71a, Plate II. The rating schedule addressing the musculoskeletal system was revised effective February 7, 2021, and the revisions in DC 5271 now provide that the requisite limitation of motion for "moderate" is less than 15 degrees dorsiflexion or less than 30 degrees plantarflexion, and for "marked" is less than 5 degrees dorsiflexion or less than 10 degrees plantarflexion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Prior to the revisions, the terms "moderate" and "marked" were not defined in the rating criteria. Rather than applying a mechanical formula, the Board had to evaluate all of the evidence, to the end that its decisions were "equitable and just." 38 C.F.R. § 4.6. Where a law or regulation changes during the pendency of a claim for an increased rating, VA should first determine whether the revised version is more favorable to the veteran. If the revised version of the regulation is more favorable, however, the retroactive reach of the new regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. VAOPGCPREC 3-2000; see 38 C.F.R. § 3.114. The Board finds that the evidence, as documented through range of motion findings, indicates that application of the revised rating criteria is not favorable to the Veteran. Accordingly, the Board will only apply and discuss the rating criteria that were in effect prior to February 7, 2021. Prior to August 24, 2020, the Board finds that the Veteran's right ankle was manifested by painful motion and then later by moderate limitation of motion. The June 2009 VA examination showed normal range of motion and no additional loss from pain, fatigue, weakness. incoordination or lack of endurance. Range of motion testing for the opposite, undamaged joint was the same. However, the Veteran did report constant pain on the top of his right ankle. Therefore, prior to July 1, 2015, the Board resolves reasonable doubt to find that a 10 percent rating is warranted for painful motion despite the Veteran still maintaining normal range of motion. See 38 C.F.R. § 4.59. The evidence from July 2015 to August 23, 2020 does not support a rating in excess of 10 percent. The Veteran's VA treatment records only show complaints of right ankle pain. The August 2016 VA examination showed normal dorsiflexion and plantarflexion to 35 degrees with normal muscle strength. Pain was noted on examination but did not result in additional functional loss. There was no pain on weight bearing, and range of motion testing for the opposite, undamaged joint showed normal dorsiflexion and plantarflexion to 40 degrees. No flare-ups of the right ankle were reported by the Veteran. Thereafter, the September 2019 VA examination showed normal dorsiflexion and plantarflexion to 35 degrees with normal muscle strength. Pain was noted on examination but did not result in additional functional loss. There was evidence of pain on weight bearing, and range of motion testing for the opposite, undamaged joint showed normal dorsiflexion and plantarflexion. No flare-ups of the right ankle were reported by the Veteran. Here, the 10 percent rating is continued despite evidence of less than normal range of motion in the right ankle. The Board finds that plantarflexion to 35 degrees in the right ankle demonstrated moderate limitation of motion because it was 10 degrees less than normal range of motion, and less than that demonstrated by the opposite, undamaged left ankle. See 38 C.F.R. § 4.71a, Plate II. The Board further finds that the limitation of motion documented was no more than moderate as the Veteran maintained normal muscle strength in his right ankle. Consequently, a rating in excess of 10 percent is not warranted from July 1, 2015 to August 23, 2020. As of August 24, 2020, the Board finds that the Veteran's right ankle was manifested by marked limitation of motion. The August 2020 VA examination showed dorsiflexion to 10 degrees and plantarflexion to 35 degrees with abnormal muscle strength testing of "3/5." Pain was noted on examination and deemed to result in additional functional loss. Range of motion testing for the opposite, undamaged joint showed normal dorsiflexion and plantarflexion. Flare-ups of the right ankle were reported by the Veteran and were estimated to cause limitation of motion of dorsiflexion to 10 degrees and plantarflexion to 25 degrees. Thereafter, the March 2021 VA examination showed dorsiflexion to 10 degrees and plantarflexion to 25 degrees with normal muscle strength. Pain was noted on examination and deemed to result in additional functional loss. There was evidence of pain on weight bearing, and both active and passive motion. Range of motion testing for the opposite, undamaged joint showed normal dorsiflexion and plantarflexion. Flare-ups of the right ankle were reported by the Veteran and were estimated to cause limitation of motion of dorsiflexion to 10 degrees and plantarflexion to 20 degrees. Here, the maximum rating of 20 percent is warranted as the Board finds that plantarflexion between 20 to 25 degrees is essentially half of the normal range of motion, and half of what has been demonstrated by the opposite, undamaged left ankle. See 38 C.F.R. § 4.71a, Plate II. The Board further finds that the limitation of motion documented is marked because it was also accompanied by stark decrease in muscle strength in the right ankle. As of August 24, 2020, the Veteran has been assigned the maximum rating for his right ankle based on limitation of motion, the manifestation of pain alone does not allow for a higher rating. See 38 C.F.R. § 4.59; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As to Correia v. McDonald, 28 Vet. App. 158 (2016), the Board finds that the Veteran is already being compensated for his current symptoms related to painful motion, a higher rating under Correia is not warranted. As to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the reported limitation of motion during a flareup was considered in finding marked limitation of motion. The Board does not find that the evidence indicates that a rating higher than 20 percent is warranted at any time. While the Veteran had limitation of motion in his right ankle, as well as symptoms such as pain, weakness, swelling, and limited mobility, 20 percent is the maximum rating that can be assigned under DC 5271. No higher rating can be assigned unless the Veteran's right ankle demonstrates ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. The preponderance of the evidence shows that the Veteran does not have ankylosis. None of the VA examiners have opined that the Veteran suffers from ankylosis, and all of the remaining medical evidence indicates that while the Veteran has limitation of motion in his right ankle, he nonetheless has always had at least some degree of range of motion. Similarly, as to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the reported limitation of motion during a flareup as documented in the August 2020 and March 2021 VA examinations does not amount to nor was akin to ankylosis. Accordingly, the Veteran is not entitled to a higher rating. In sum, the Board concludes that a 10 percent rating for a right ankle disability, but no higher, prior to August 24, 2020, and a maximum 20 percent rating thereafter is warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AD 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.