Citation Nr: 21041486 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-14 432 DATE: July 9, 2021 ORDER Entitlement to a rating in excess of 10 percent for left ankle disability prior to July 18, 2019 is denied. Entitlement to a 30 percent rating, but no higher, for a left ankle disability from July 18, 2019 is granted. REMANDED Entitlement to a total disability rating based on unemployability is remanded. FINDINGS OF FACT 1. Prior to July 18, 2019 the Veteran's left ankle disability produced symptomatology of no worse than moderate limitation of motion. 2. From July 18, 2019 the Veteran's left ankle disability manifested the functional equivalent of ankylosis during a flare-up. CONCLUSIONS OF LAW 1. Prior to July 18, 2019, the criteria for entitlement to a rating in excess of 10 percent for left ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5270, 5271; 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). 2. Since July 18, 2019, the criteria for entitlement to a rating of 30 percent, but no higher, for a left ankle disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5270, 5271; 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to August 1986. This matter comes before the Board from a May 2013 rating decision. Most recently the matter was remanded by the Board in June 2019. 1. Entitlement to a rating in excess of 10 percent for left ankle disability The Veteran's left ankle condition is currently rated at 10 percent disabling for painful motion under DC 5271. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 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."). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9 (b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904 (d)(2), the Board will proceed to adjudicate the Veteran's claim. DC 5271 applies to limited motion of the ankle. Prior to February 7, 2021, DC 5271 provided a 10 percent rating assigned for moderate limited motion of the ankle, and a maximum 20 percent rating assigned for marked limited motion of the ankle. See 38 C.F.R. § 4.71a. The terms moderate and marked limited ankle motion are not defined in the rating schedule; however, VA has separately defined moderate limitation of ankle motion as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion and defines marked limitation of ankle motion as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. From February 7, 2021, DC 5271 contains a specific definition of marked limited motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion equaling a 20 percent rating. Moderate is also defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion equaling a 10 percent rating. Prior to February 7, 2021, DC 5262, impairment of the tibia and fibula, indicated a 10 percent rating was assigned for malunion with slight knee or ankle disability, a 20 percent rating for malunion with moderate knee or ankle disability, and a 30 percent rating for malunion with marked knee or ankle disability. A 40 percent rating was assigned for nonunion of the tibia and fibula with loose motion requiring a brace. From February 7, 2021, DC 5262 is listed as involving tibia and fibula, impairment of: a 40 percent rating is warranted with nonunion of, with loose motion, requiring brace. For malunion of: VA is to evaluate under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. For medial tibial stress syndrome (MTSS), or shin splints: A 30 percent rating requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 10 percent rating requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A noncompensable rating requires treatment less than 12 consecutive months, one or both lower extremities. The Veteran underwent a VA examination in April 2013. The Veteran reported bilateral stiffness in the ankles as well as swelling, fatigue, and increased pain with weightbearing in the left ankle. The Veteran additionally endorsed the left ankle locks with weightbearing. The Veteran reported flare-ups that occur monthly. During a flare-up the ankle locks and pops and the Veteran must "work it out" for relief. Range of motion (ROM) of the right ankle was normal and ROM of the left was diminished. Initial ROM of the left was plantar flexion to 40 degrees, without pain noted, and plantar dorsiflexion to 15 degrees, with pain noted. No additional loss of motion was noted after repetitive use testing. The examiner indicated less movement than normal and pain on movement contribute to functional loss. There was slightly reduced muscle strength on dorsiflexion of the left ankle, but normal strength on plantar flexion. The anterior drawer test and talar tilt dest were negative. No ankylosis was noted. No history of shin splints, stress fractures, achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus or talus, or a talectomy was indicated. No arthritis was noted on x-rays of the ankle. The Veteran regularly uses a brace, and occasionally uses a walking stick. At the January 2016 VA examination, the Veteran reported on and off pain, swelling, and decreased ROM. The Veteran reported monthly flare-ups with the same symptomatology reported at the April 2013 VA examination. The Veteran's ROM was reduced, measuring dorsiflexion 0 to 10 degrees and plantar flexion 0 to 20 degrees. Pain was observed on examination, but did not contribute to functional loss. There was evidence of pain with weightbearing and localized tenderness of pain on palpation. Tenderness to the entire left ankle was noted. No tenderness to the left shin was noted. The Veteran was wearing a left ankle and knee brace, and ambulated with a limp. No additional reduction in ROM was noted on observed repetitive use, or estimated with repeated use over time, or with during a flare-up. The examiner noted disturbance or locomotion and interference with standing as additional contributing factors of the disability. There was slight reduction of muscle strength in bother plantar flexion and dorsiflexion, however, this was attributed to left foot, left knee, and lower back pain, not the ankle disability. No ankylosis or ankle instability was noted. The Veteran reported regular use of a brace. The Veteran underwent another VA examination in July 2019. The Veteran reported significantly increased symptomatology including daily pain, little ROM, and that the ankle pops and gives out on him. The Veteran reported flare-ups one to two times a week, with increased pain and complete loss of motion. Flare-ups were reported to last about a day and limit all but very necessary activities. The Veteran endorsed pain with all weightbearing, limited ability to tolerate walking, and inability to participate in any sporting activity. The Veteran's ROM was dorsiflexion 0 to 5 degrees and plantar flexion 0 to 30 degrees. The examiner estimated the Veteran would lose all ROM during a flare-up, finding 0 degrees of dorsiflexion during a flare-up and 0 degrees of plantar flexion during a flare-up. Pain was noted on all motion as wells as mild tenderness to palpation over the medial and lateral malleoli. Muscle strength testing was slightly reduced and no muscle atrophy or ankylosis was noted. Left ankle instability was suspected, but anterior drawer test and talar tilt test were both negative. No history of shin splints was noted. The Veteran reported constant use of a brace and regular use of a cane. The Veteran has consistently reported pain and limited ROM. Treatment records indicate treatment of the Veteran's right ankle and are consistent with the VA examinations of record. In a March 2016 letter to the VA, the Veteran raised concerns about the January 2016 VA examination. The Veteran indicated that no testing, measuring of flexibility, or ROM testing was done at the examination. The Veteran also highlighted the 2015 MRI results which showed ligament tear due to a previous injury. The Board acknowledges the Veteran's claim that the January 2016 VA examination did not conduct the ROM and flexibility testing. The Board has reviewed the examination report for evidence that these tests were not conducted, and can find no evidence to support this conclusion. Rather, the January 2016 examiner indicated an in-person examination was conducted, that the medical files were reviewed, ROM measurements were documented, and the examiner documented the 2015 MRI results. The Board therefore presumes that the Veteran's January 2016 VA examination was conducted properly as there is a presumption of regularity that attends the administrative functions of the government. See Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992). Turning to the evidence, the Board finds a rating in excess of 10 percent for the left ankle disability is not warranted prior to July 18, 2019. After July 18, 2019, the Board finds a rating of 30 percent is warranted. Prior to July 18, 2019, the Veteran's left ankle manifested with at worst, dorsiflexion to 10 degrees and plantar flexion to 20 degrees. The Veteran did not report a loss of motion during a flare-up, only popping and a need to "work out" the ankle. Further, while there was a reduction of strength noted, this was at least partially attributed to his left knee and lower back disabilities. No history of instability was noted, instability was no suspected, and stability testing was negative for instability. The Board has considered the impart of pain on motion, but the record does not support a finding that pain has limited his ROM to a degree that a higher rating is warranted. Testing on active and passive motion was not conducted specifically; however, pain was noted throughout, including with weightbearing, and a slight reduction of strength was noted. There is no indication, and the Veteran has not asserted, that reduction of motion would be greater on passive ROM than that recorded for active ROM. Accordingly, a rating in excess of 10 percent is not warranted prior to July 18, 2019. The Board turns to consideration of a potential increased rating for ankylosis. DC 5270 provides a 40 percent rating for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity; a 30 percent rating for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees; and a 20 percent rating for ankylosis in plantar flexion less than 30 degrees. Of note, the regulation changes from February 2021 did not alter DC 5270 and thus the Board will not do a separate analysis. The relevant DC impacted by the rating criteria change was DC 5271. However, the Veteran's ankle condition, as of this decision, will be rated under DC 5270. At the July 2019 VA examination the Veteran's left ankle condition presented with substantially increased symptomatology, specifically during a flare-up. The Veteran reported that flare-up occurred with more regularity, lasted approximately a day, and rendered him incapable of moving his ankle at all until the flare-up subsided. The examiner estimated no ROM during a flare-up, with both dorsiflexion and plantar flexion limited to 0 degrees during a flare-up. It was noted the Veteran experienced limited and painful non-weightbearing passive ROM. The Board finds that from this examination, the Veteran experiences the functional equivalent of ankylosis during a flare-up. As such, the Board finds a 30 percent rating under DC 5270 is warranted for dorsiflexion to 0 degrees during a flare-up. A still higher rating than 30 percent is not warranted under DC 5270 as the Veteran's ROM during a flare-up does not more closely approximate plantar flexion greater than 40 degrees or in dorsiflexion more than 10 degrees or with abduction, adduction, inversion or eversion deformity. The Board has considered whether a higher rating is warranted under another DC. The Veteran has reported instability of the ankle and shin splints while in-service however, instability testing has regularly been negative as has treatment for shin splints post-service. Further, there is no evidence of actual nonunion or malunion of the tibia and fibula. As such, a rating under DC 5262 for ankle instability or shin splints is not appropriate. There is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the Os calcis or astragalus, or astragalectomy. As such, ratings under DCs 5272, 5273, and 5274 are not appropriate. REASONS FOR REMAND 1. Entitlement to a total disability rating based on unemployability is remanded. The March 2016 correspondence from the Veteran indicates a desire to pursue total disability based on unemployability based on his service-connected disabilities. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Thus, the issue of a TDIU is on appeal before the Board. The record does not contain complete employment or education information. Nor does the record contain an application for unemployability. As such, while TDIU has been raised by the record, there is insufficient evidence with which to determine the Veteran's eligibility. A remand to obtain the necessary information is warranted. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. Allow sufficient time for the Veteran to return the completed Form. B. CHATTERJEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.