Citation Nr: 21040489 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-48 503 DATE: July 3, 2021 ORDER Entitlement to an initial 10 percent disability rating, but no higher, for service-connected right ankle sprain is granted, effective January 25, 2012, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent for service-connected postoperative residuals, right foot injury (right foot disability) is denied. FINDINGS OF FACT 1. Effective January 25, 2012, the Veteran's service-connected right ankle sprain was manifested by functional loss due to pain; however, throughout the appeal period, the Veteran's service-connected right ankle sprain was not manifested by marked limitation of motion or ankylosis. 2. Throughout the appeal period, the Veteran's service-connected right foot disability was not manifested as a severe disability. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent disability rating, but no higher, for the Veteran's service-connected right ankle sprain are met, effective January 25, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for a disability rating in excess of 20 percent for service-connected right foot disability are not 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 Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1981 to May 1998. He testified before the undersigned at a February 2019 Board hearing; a transcript of the hearing has been associated with the record. In August 2019, the Board remanded the Veteran's claim for service connection for an acquired psychiatric disorder. Thereafter, in a January 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for other specified trauma and stressor related disorder, effective January 25, 2012. This represents a full grant of the benefits sought on appeal; therefore, that issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, 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. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramidingthat is, the evaluation of the same disability or the same manifestation of a disability, under different diagnostic codesis to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2020). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 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. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. By way of background, a September 1998 rating decision granted service connection for the Veteran's right foot disability and assigned an initial noncompensable disability rating under Diagnostic Code 5284, effective June 8, 1998. In November 1999, the AOJ awarded an increased initial rating of 20 percent for the Veteran's service-connected right foot disability under Diagnostic Code 5284, effective June 1, 1998. In the July 2013 rating decision rating decision on appeal, the AOJ granted service connection for the Veteran's service-connected right ankle disability and assigned an initial noncompensable disability rating under Diagnostic Code 5271, effective January 26, 2012. The AOJ also denied the Veteran's claim for an increased rating for his service-connected right foot disability. In a January 2021 rating decision, the AOJ awarded an increased rating of 10 percent for the Veteran's service-connected right ankle disability under Diagnostic Code 5271, effective October 2, 2020. The AOJ also awarded an earlier effective date of January 25, 2012, to the Veteran's service-connected right ankle disability on the basis of clear and unmistakable error in the July 2013 decision. 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). Under the former rating criteria for Diagnostic Code 5271, a 10 percent disability rating was warranted for moderate limitation of motion of the ankle, and a 20 percent disability rating was warranted for marked limitation of motion of the ankle. Under the new criteria, to warrant a 10 percent disability rating, moderate limitation of motion of the ankle must be shown, which is now defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. To warrant a 20 percent disability rating, marked limitation of motion of the ankle must be shown, which is now defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (effective February 7, 2021). "Other foot injuries" not otherwise described by the criteria for rating foot disabilities codified at 38 C.F.R. § 4.71a , Diagnostic Codes 5276-5283, are rated as 10 percent disabling for a moderate disability, 20 percent disabling for a moderately-severe disability, and 30 percent disabling for a severe disability. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board observes that, under the prior rating criteria, the words "moderate" and "marked" were not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "moderate" and/or "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. An April 2012 VA treatment record noted the Veteran's report of right foot pain which he rated as a five out of ten. His treatment provider noted that he was ambulatory with a steady gait. The Veteran reported that his pain was intermittent and aching in nature. In October 2012, the Veteran underwent a VA ankle examination, and the examiner noted his diagnosis of a right ankle sprain. He reported constant pain with flare-ups, as well as the use of medication for pain. The Veteran stated that he experienced difficulty running and lifting weights during flare-ups, as well as feeling limited in walking when he needed to bear weight on his right ankle. Upon examination, his range of motion was plantar flexion to 45 degrees or greater with objective evidence of painful motion at 45 degrees or greater, and dorsiflexion to 20 degrees or greater with objective evidence of painful motion at 20 degrees or greater. The examiner noted that he did not have any addition loss of motion following repetitive-use testing and he did not experience any additional functional loss or impairment. Muscle strength testing was normal, and joint stability testing was normal. There was no evidence of ankylosis, and arthritis had not been demonstrated. The examiner noted the Veteran's report that his right ankle disability rendered him unable to stand for long durations and that he could not lift heavy objects. The Veteran also underwent a VA foot conditions examination, and the examiner noted his history of a 1991 injury. He reported constant pain with flare-ups, and the use of over-the-counter medication to treat his pain. The examiner noted that examination of the right foot revealed mild tenderness to palpation on the fourth and fifth metatarsals, as well as no pain or tenderness of the right heel. The examiner then noted that X-rays revealed a right foot series within normal limits for age, and the primary diagnostic code was "minor abnormality." The examiner then noted the Veteran's report of difficulty lifting and standing, which was necessary for his job; nevertheless, the examiner stated that a right heel condition was not demonstrated during the examination. In June 2013, the Veteran underwent another VA ankle examination, and the examiner noted his diagnosis of a right ankle sprain. He reported that his ankle was weaker, and he also reported cramping. He described the pain as constant, but it was decreased with supportive bootwear. He stated that his pain increased with prolonged standing and strenuous activity, and he rated his pain as an eight to nine out of ten. Upon examination, his range of motion was plantar flexion to 40 degrees with no objective evidence of painful motion, and dorsiflexion to 20 degrees or greater with no objective evidence of painful motion. The examiner noted that he did not have any additional loss of motion following repetitive-use testing, and he did not experience any additional functional loss or impairment. There was localized tenderness or pain on palpation, but muscle strength testing was normal, and joint stability testing was normal. There was no evidence of ankylosis, and arthritis had not been demonstrated. The examiner concluded that the Veteran's right ankle disability did not impact his ability to work. The Veteran also underwent a VA foot conditions examination, and the examiner noted his history of a 1991 injury to his right heel and dorsum, as well as his subsequent surgery. He reported right foot pain incorporated with his right ankle pain, and he rated the pain as a six out of ten. He stated that the pain increased with weight bearing, but it decreased with exercising. He also denied swelling. The examiner noted the Veteran's report of avoiding prolonged standing for periods greater than two hours, as well as modifying tank inspections to avoid climbing up and down all day. Nevertheless, the Veteran indicated that he had not missed any days of work due to his service-connected right foot disability. In his July 2014 notice of disagreement, the Veteran reported that his right ankle disability resulted in painful motion with an abnormal gait that affected his ability to walk. He also reported daily swelling. During his February 2019 hearing before the undersigned, the Veteran stated that the functional impairment associated with his right ankle disability was dependent on the level of activity performed throughout the day, including increasing pain, limitation of motion, and swelling. He also reported an altered gait, as well as falling occasionally. The Veteran also reported worsening symptoms associate with his right foot disability, In October 2020, the Veteran underwent another VA ankle examination, and the examiner noted his diagnosis of a right ankle sprain. The Veteran reported worsening pain and weakness, as well as weekly severe flare-ups that lasted for two days at a time that were precipitated by walking and standing. He also reported problems with prolonged walking, running, and standing. Upon examination, his range of motion was plantar flexion to 35 degrees, and dorsiflexion to 15 degrees. There was evidence of pain on dorsiflexion and plantar flexion, and it was noted to cause functional loss. There was also evidence of pain with weight bearing and objective evidence of crepitus. The examiner noted that he did not have any addition loss of motion following repetitive-use testing. The examiner then noted that the examination was not being performed during a flare-up or following repetitive use, but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. The examiner then estimated that, despite additional pain and weakness following repetitive use or during flare ups, his range of motion would stay the same. Additional factors contributing to the Veteran's disability included less movement than normal and weakened movement. Muscle strength testing revealed active movement against some resistance in plantar flexion and normal strength in dorsiflexion. There was no evidence of ankylosis, and joint stability testing was normal. As for the functional impact associated with the Veteran's right ankle disability, the examiner noted that he had difficulty with prolonged walking, running, and standing. In turn, these functional deficits caused him to move slower, and his productivity decreased. The Veteran also underwent another VA foot conditions examination, and he was diagnosed with a right foot injury. He reported a sharp aching pain in his right foot, as well as flare ups two to three times per week. He described the flare-ups as severe, and they lasted two to three days at a time that were precipitated by walking and standing. He also reported problems with prolonged walking and standing. Upon examination, the examiner concluded that the Veteran's right foot disability was manifested as a moderate foot disability that chronically compromised weight bearing, but it did not cause him to require arch supports, custom orthotic inserts, or shoe modifications. The additional factors contributing to functional loss included pain on movement, pain on weight bearing, pain on nonweight bearing, disturbance of locomotion, and interference with standing. As for the functional impairment, the examiner noted that the Veteran's right foot pain and weakness caused him to have difficulty walking, running, and standing, and that he would be prevented from having ideal productivity even in sedentary work as he was less efficient. With regard to the Veteran's right ankle disability, after resolving all reasonable doubt in his favor, the Board finds that an initial 10 percent rating is warranted pursuant to 38 C.F.R. § 4.59. Specifically, the evidence of record indicates that the pain associated with his right ankle disability resulted in functional loss. For example, the October 2012 VA examiner noted that there was objective evidence of painful motion, and that his right ankle disability rendered him unable to stand for long durations and that he could not lift heavy objects. However, the Board finds that the Veteran is not entitled to higher ratings under any pertinent diagnostic code at any other point during the appeal period for his service-connected right ankle disability or his service-connected right foot injury. Initially, the Board notes that a higher rating could be assigned to the Veteran's service-connected right ankle disability under Diagnostic Code 5270 for ankylosis of the ankle; however, there is no evidence of record demonstrating ankylosis in the ankle at any point during the appeal period. To the contrary, the October 2012, June 2013, and October 2020 VA examiners each noted that ankylosis was not present in his right ankle upon examination. As for the prior version of Diagnostic Code 5271 concerning limitation of motion of the ankle, the Board notes that the Veteran's displayed range of motion was at its worst during the October 2020 VA examination, and his plantar flexion was to 35 degrees and his dorsiflexion was to 15 degrees. These findings demonstrate that the Veteran maintains 50 percent or more of what would be considered normal range of motion, see 38 C.F.R. § 4.71, Plate II, and the Board finds that such is inconsistent with "marked" limitation of motion as contemplated under the prior version of Diagnostic Code 5271. As for the new version of Diagnostic Code 5271, as noted above, plantar flexion must be limited 10 degrees and/or dorsiflexion must be limited to 5 degrees. Because the Veteran's range of motion does not meet the criteria for a higher rating under the new version of Diagnostic Code 5271, a rating in excess of 10 percent is not warranted. With regard to giving proper consideration to the effects of pain in assigning a disability rating to the Veteran's right ankle disability, as well as the provisions of 38 C.F.R. § 4.59 and the holdings in DeLuca and Mitchell, the Board notes that the assignment of the initial 10 percent disability rating to the Veteran's right ankle was based on consideration of these principles. However, the preponderance of the evidence is against a rating in excess of the 10 percent. Indeed, the October 2012 VA examiner specifically noted that he did not have any addition loss of motion following repetitive-use testing, and he did not experience any additional functional loss or impairment. Likewise, the June 2013 VA examiner noted that he did not have any addition loss of motion following repetitive-use testing, and he did not experience any additional functional loss or impairment. Finally, the October 2020 VA examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. Nevertheless, despite additional pain and weakness, the examiner estimated that his range of motion would stay the same following repetitive use or during flare ups. Thus, the evidence does not show that the Veteran's functional loss following repetitive use or during a flare-up would be of such frequency or severity to warrant higher ratings for his right ankle disability at any point during the appeal period. As for the Veteran's service-connected right foot disability, the Board finds that the preponderance of the evidence is against an increased rating. As noted above, a higher disability rating under Diagnostic Code 5284 requires that the service-connected disability be manifested as severe; however, such is not demonstrated in this case. For example, in April 2012, the Veteran rated his right foot pain as only a five out of ten, and he was ambulatory with a steady gait. Despite the Veteran's report of constant pain and flare-ups during the October 2012 VA examination, the examiner noted only mild tenderness ot palpation on the fourth and fifth metatarsals, as well as no pain or tenderness of the right heel. The examiner also noted that X-rays revealed only a minor abnormality that within normal limits for the Veteran's age. Similar to April 2012, the Veteran rated his pain as a six out of ten during the June 2013 VA examination, he denied swelling, and he indicated that he had not missed any days of work due to his service-connected right foot disability. Finally, despite the Veteran's reports of severe pain and flare-ups during the October 2020 VA examination, the examiner nevertheless concluded that the right foot injury was manifested as no more than a moderate foot disability that chronically compromised weight bearing, but it did not cause him to require arch supports, custom orthotic inserts, or shoe modifications. Therefore, the Board finds that a disability rating in excess of 20 percent for his service-connected right foot disability is not warranted under Diagnostic Code 5284. 38 C.F.R. § 4.71a. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of each of his service-connected disabilities, including the functional impairment associated with those disabilities, as he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Indeed, in assigning the 10 percent disability rating under Diagnostic Code 5271 for his right ankle disability, the Board has relied upon the October 2012 and June 2013 VA examination reports which, in turn, relied on his lay statements concerning experiencing functional loss due to pain. However, with respect to the requirements for higher ratings for his right ankle disability and right foot disability, the Board finds that the medical evidence is more probative, as it offers detailed, specific, specialized determinations pertinent to the rating criteria, and it is the most probative with regard to evaluating the pertinent symptoms for the disabilities on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In summation, after resolving all reasonable doubt in the Veteran's favor, the Board finds that an initial 10 percent disability rating is warranted for his right ankle disability, effective January 25, 2012, under Diagnostic Code 5271. However, the preponderance of the evidence is against any higher ratings for the Veteran's right ankle disability and right foot disability at any other time during the appeal period. (Continued on Next Page) Because the preponderance of the evidence is against higher ratings at any point during the appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.