Citation Nr: 21042223 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-38 680 DATE: July 12, 2021 ORDER A rating of more than 20 percent for residuals of left ankle fracture with traumatic arthritis and marked limitation of motion is denied. FINDING OF FACT The Veteran had marked limited motion of the left ankle without ankylosis. CONCLUSION OF LAW The criteria for a rating of more than 20 percent for residuals of left ankle fracture with traumatic arthritis and marked limitation of motion have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Codes 5003, 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1975 to April 1994. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the RO. The Board remanded the appeal in June 2018 for additional development. Specifically, the Board instructed the RO to schedule the Veteran for VA examination to ascertain the level of severity of his disability. The development has been completed and the case has been returned to the Board. The appeal originally included the issues of entitlement to service connection for a left thumb and index finger disability, claimed secondary to a service-connected left shoulder disability and a left foot disability, claimed secondary to a service-connected left ankle disability. In May 2021, the RO granted service connection for left thumb and index finger nerve disability and peripheral neuropathy affecting peroneal nerve of the left foot and assigned 30 percent and 20 percent ratings effective June 10, 2013, respectively. These claims have been resolved and are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to a rating of more than 20 percent for residuals of left ankle fracture with traumatic arthritis and marked limitation of motion VA evaluates service-connected disabilities by applying the criteria in VA's Schedule for Rating Disabilities. The "Schedule" is based on the average impairment of earning capacity resulting from disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Schedule contains Diagnostic Codes ("DCs") which list the disabilities and provide descriptions of their severity and the appropriate rating. The 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). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran's left ankle disability rating is assigned under DCs 5003, 5271. DC 5003 provides that degenerative arthritis will be rated based on limitation of motion of the affected joint. When the limitation of motion of the specific joint or joints is noncompensable, a 10 percent rating is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, a 20 percent rating is assigned for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. A 10 percent rating is assigned for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Under DC 5271, a 20 percent rating is the maximum rating assigned for marked limited motion of the ankle. See 38 C.F.R. § § 4.71a, DC 5271 When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. 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 while a claim for a higher rating is pending, the Board must first determine whether the change is more favorable to the veteran. If applying the new law results in a better outcome for the Veteran than using the old law, VA must apply the new law. However, VA can only apply the new law beginning on the date the new law became effective. This may mean that VA would have to apply both the old and new law. In other words, VA must generally apply both the old and the new law for the period before and after the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change to the new law. 38 U.S.C. § 5110(g) 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. Under the revised criteria, effective February 7, 2021, DC 5003 provides that degenerative arthritis, other than post-traumatic is rated based on limitation of motion of the affected joint; there is otherwise no change in the criteria for evaluating degenerative arthritis. Under the revised criteria, DC 5271 now provides that a 20 percent rating is the maximum rating assigned for marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5003, 5271. During an October 2012 VA ankle examination, the Veteran reported an increasingly painful left ankle that gave way on walking. "Protective activity and relative rest" were recommended for the left ankle disability. He took over-the-counter medication for pain and Vicodin if the left ankle pain was severe. He reported flare-ups impacted the function of the left ankle and stated that he experienced at least one to two weekly flare-ups. He couldn't perform activities of daily living when he experienced flare-ups but could walk short distances with pain. Objectively, left ankle plantar flexion was limited to 10 degrees (with objective evidence of painful motion beginning at 10 degrees). Left ankle plantar dorsiflexion was limited to 20 degrees or greater (with objective evidence of painful motion beginning at 20 degrees or greater). On repetitive use testing, left ankle plantar flexion was limited to 5 degrees after 3 repetitions. There was no additional limitation of motion of dorsiflexion. The Veteran had functional loss and/or functional impairment of the left ankle manifested by less movement than normal; weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and, interference with sitting, standing, and weight-bearing. He exhibited localized tenderness or pain on palpation of the joints/soft tissue of the left ankle. He had slight decrease in muscle strength testing (4/5: active movement against some resistance) in left ankle plantar flexion and dorsiflexion. He did not have left ankle ankylosis. He had no history of "shin splints", stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus). He had not undergone total ankle joint replacement and did not use an assistive device for normal mode of locomotion. The examiner indicated that the Veteran's left ankle disability impacted his ability to work and reiterated that when the Veteran experienced left ankle pain he was not able to accomplish his activities of daily living (i.e., cleaning or taking care of his animals) and was only able to walk short distances due to pain in the left ankle. During VA treatment in April 2013, the Veteran reported that surgical options for his left ankle disability had been discussed, including ankle replacement or ankle fusion but he was not ready to consider surgery. He had treated his left ankle disability with physical therapy and cortisone injections. He wore ankle-high hiking boots most of the time and reported that he was responsible for most household chores because his wife was disabled. He reported that he experienced constant ankle pain, average 5-6. Objectively, he walked with a left limp and had limited range of motion/strength in all direction on the left. The physical therapist noted that the Veteran had chronic ankle pain and an unstable ankle and advised that the Veteran needed an ankle brace with medial/lateral stays, which he had already. In a July 2014 VA treatment record, the Veteran complained of left ankle pain that was occurring more frequently. He also complained of tingling and shooting sensation in the left heel and toes with radiation up the shin area right below the knee. Objectively, he had crepitus with range of motion of the left ankle. There was no acute redness or swelling. An October 2019 VA podiatry treatment record reflects the Veteran's complaint of ongoing left ankle pain with occasional instability. On objective examination of the left ankle, he had crepitus on range of motion; decreased range of motion; pain on range of motion; negative anterior drawer with no instability; pain along the ankle joint line; pain at lateral gutter; pain over anterior talofibular ligament; pain over medial gutter; and, tenderness over course of peroneal tendon. X-ray findings showed posttraumatic degenerative disease of the left ankle, including small periarticular ossifications without interval change. The January 2020 VA ankle conditions examination report reflects the Veteran's complaint of a worsening left ankle disability that was causing all his other medical disorders. He reported that he had pain, difficulty walking and intermittent episodes of pain that shot up into his calf. He did not report that he experienced flare-ups of the ankle Objectively, left ankle dorsiflexion was limited to 5 degrees and plantar flexion was limited to 30 degrees. Pain was noted on examination but did not result in/cause functional loss. There was no evidence of pain with weight-bearing; objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue; or, objective evidence of crepitus. He was able to perform repetitive use testing without additional loss of function or range of motion of the left ankle after three repetitions. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There were no complaints of flare-ups of the left ankle. He had no reduction in muscle strength of the left ankle or muscle atrophy. He did not have left ankle ankylosis. Left ankle instability or dislocation was suspected but there was no laxity compared with the opposite side on anterior drawer test or talar tilt test. He had no history of "shin splints", stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus). He did not use an assistive device for normal mode of locomotion. The examiner remarked that there was no evidence of pain on passive range of motion testing or when the joint was used in non-weight bearing. An October 2020 VA treatment record reflects, in pertinent part, the Veteran's complaint of ongoing, worsening left ankle pain. March 2021 x-ray findings of the left ankle showed no acute fracture or acute process. Even considering the complaints of worsening left ankle pain and functional impairment documented above, there is no evidence of left ankle ankylosis. The October 2012 and January 2020 VA examination reports explicitly document that the Veteran does not have left ankle ankylosis. In addition, the January 2020 report of VA examination reflect that there was no evidence of pain with weight-bearing, on passive range of motion testing or when the joint was used in non-weight bearing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Thus, the preponderance of the evidence is against assignment of a rating in excess of 20 percent for the left ankle disability under the former or revised rating criteria. The 20 percent rating is the maximum evaluation for limitation of motion of the ankle. Therefore, further DeLuca analysis is not required. Johnston v. Brown, 10 Vet. App. 80 (1997). The Veteran has not raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson 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.