Citation Nr: 21040420 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-51 266 DATE: July 3, 2021 ORDER Entitlement to a disability rating of 20 percent, but no higher, for residuals of fractured left heel with degenerative changes of the left ankle is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's residuals of fractured left heel with degenerative changes of the left ankle manifests with marked limitation of motion; ankylosis of the Veteran's left ankle is not present. CONCLUSION OF LAW The criteria for a disability rating of 20 percent, but no higher, for residuals of fractured left heel with degenerative changes of the left ankle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in November 2018 for further development. The Board finds there has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a 20 percent rating for residuals of fractured left heel with degenerative changes of the left ankle is granted. The Veteran seeks a rating in excess of 10 percent for his service-connected residuals of fractured left heel with degenerative changes of the left ankle. Service connection for residuals of fractured left heel with degenerative changes of the left ankle was granted in a January 1988 rating decision with a 10 percent rating from October 8, 1987. In August 2015, the Veteran filed an application for increased rating. For the reasons that follow, the Board finds entitlement to a disability rating of 20 percent, but no higher, is warranted. The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5271. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Codes 5010 and 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. Prior to February 7, 2021, under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. 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. Prior to February 7, 2021, Diagnostic Code 5010 provides that arthritis due to trauma and substantiated by X-ray findings should be rated as degenerative arthritis. Under DC 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is assigned; with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5010 such that post-traumatic arthritis should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 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 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As a preliminary matter, the Board notes that although the Veteran presented for a VA examination in November 2015, the examination was not fully compliant with the requirements set forth by Sharp, 29 Vet. App. at 33. However, the report does contain some relevant findings that are included herein. In this case, a July 2015 VA treatment record notes increased pain with no acute findings. The physician noted left foot with normal capillary refill, strong pedal pulses, no edema, and no gross visual deformities. The Veteran reported discomfort with flexion and extension. An August 2015 VA treatment record notes joint stiffness with markedly decreased range of motion for both dorsiflexion and plantar flexion and inversion and eversion of the foot. The Veteran underwent a VA foot examination in November 2015. During the examination, the Veteran reported left heel pain described as a constant dull ache with flare-ups precipitated by weather changes, prolonged walking, and standing on hard or uneven surfaces. He also reported his left foot goes numb when sitting. The examiner indicated that, during a flare-up or with repetitive use, the Veteran has increased difficulty standing or walking for prolonged periods. The examiner indicated the Veteran's left calcaneal fracture is of moderate severity; chronically compromises weight bearing; and requires arch supports, custom orthotic inserts or shoe modifications. The examiner noted pain contributes to functional loss and less movement than normal, swelling, disturbance of locomotion, interference with standing, lack of endurance, and pain contribute to disability. The Veteran also underwent a VA ankle examination in November 2015. The Veteran reported flare-ups and functional loss or impairment that results in increased difficulty walking or standing for prolonged periods of time. Range of motion testing revealed dorsiflexion to 5 degrees and plantar flexion to 40 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The examiner indicated an inability to say whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or during a flare-up. The examiner noted no muscle atrophy or ankylosis. The examiner noted bilateral shin splints that do not affect range of motion of the ankle or knee and are without symptoms unless the Veteran attempts to run. A December 2015 VA treatment record notes pain and stiffness present with movement of the ankle and the knee with some mild crepitation with movement of the ankle joint. An August 2016 VA treatment record notes no muscle aches or pain. A July 2018 VA treatment record notes no musculoskeletal problem. A June 2019 VA treatment record notes no muscle aches or pains. In compliance with the Board's prior remand directives, the Veteran underwent a VA ankle examination in September 2019. During the examination, the Veteran reported left heel pain that has increased to involve the anterior, medial, and lateral ankle. He also reported impaired gait with limping, swelling to the posterior ankle and medial ankle, and difficulty going up and down stairs or ladders. The Veteran reported flare-ups of the ankle such that pain worsens with any activities that involve standing, walking, or rotational movements of the ankle. He also reported functional loss or impairment such that he has decreased ability to stand/walk for prolonged periods of time without increase in pain, increase in pain with bending/twisting of ankle, and worsened pain with applying pressure to bottom of foot such as working foot controls (machinery operation). Range of motion testing revealed dorsiflexion to 5 degrees and plantar flexion to 25 degrees. The examiner noted pain on examination limits his range of motion resulting in functional loss as apparent on both dorsiflexion and plantar flexion. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of range of motion or function. The examiner indicated pain significantly limits functional ability with repeated use-over a period of time such that dorsiflexion is limited to 5 degrees and plantar flexion to 15 degrees. The examiner indicated pain significantly limits functional ability with flare-ups; however, the examiner indicated an inability to describe the resulting limitation in range of motion. The examiner speculated the Veteran would have 'significant functional loss.' The examiner noted no muscle atrophy or ankylosis. A May 2020 VA treatment record notes a negative review of the musculoskeletal system. After a review of the evidentiary record and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise that the Veteran's residuals of fractured left heel with degenerative changes of the left ankle have manifested with "marked" limitation of motion; as such, a disability rating of 20 percent, but no higher, is warranted. In reaching this conclusion, the Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, repetitive use, pain during flare-ups, and pain during repetitive use over time. The Board further notes that while the September 2020 VA examiner found the Veteran's left ankle residuals would result in no less than 5 degrees of dorsiflexion with repeated use over a period of time, the examiner also indicated 'significant functional loss' during a flare-up, which the Board finds that such additional limitations more nearly approximate "marked" limitation of motion of the left ankle, which warrants a 20 percent rating under Diagnostic Code 5271. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Initially, the Board notes that the Veteran has been granted the maximum schedular rating based upon limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Additionally, a schedular rating in excess of 20 percent is not available under Diagnostic Code 5010 based upon the Veteran's arthritis. The record also does not demonstrate ankylosis of the ankle (Diagnostic Code 5270), ankylosis of the subastragalar or tarsal joint (Diagnostic Code 5272), malunion of the os calcis or astragalus (Diagnostic Code 5273), and/or astragalectomy (Diagnostic Code 5274). As such, a higher rating based upon these conditions is not warranted. In light of the Veteran's report of flareups during his examinations, the Board has also considered whether a remand would be appropriate to obtain a more current evaluation of the Veteran's left ankle disability in furtherance of his claim. See Sharp, 29 Vet. App. at 33. However, because Diagnostic Code 5271 provides a maximum 20 percent rating which has been awarded herein, the Board finds that there can be no basis upon which to award the Veteran's left ankle disability an evaluation in excess of 20 percent for limitation of motion. See 38 C.F.R. § 4.71a. Accordingly, because a remand for a re-evaluation of the Veteran's flareups would provide no additional benefit to the development of the Veteran's left ankle disability claim, the Board finds additional testing to evaluate the impact of flare-ups and pain on limitation of motion would not avail the Veteran. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). To the extent the Veteran has asserted entitlement to separate ratings for his left heel disability and his left ankle disability, the Board finds the Veteran's left heel and ankle disability do not warrant a separate disability rating. The evidence of record reflects the Veteran's left calcaneal fracture results in limitation of motion of the ankle, which has already been considered in the evaluation under Diagnostic Code 5271. The Board finds that a separate rating may not be assigned without violating the rule against pyramiding. 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). (Continued on the next page) In conclusion, the Board finds that a disability rating of 20 percent, but no higher, for residuals of fractured left heel with degenerative changes of the left ankle is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. To the extent that the Veteran seeks a rating in excess of 20 percent, the Board finds that the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5271; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.