Citation Nr: 21042327 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-29 949 DATE: July 12, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a service-connected right ankle disability is denied. FINDING OF FACT The Veteran's right ankle disability has been manifested by pain and, at worst, moderate limitation of motion. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a service-connected right ankle disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1962 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board in October 2020 where it was remanded for additional development. It now returns for further appellate review. The Board notes that the additional claim for entitlement to service connection for a back disability was also previously remanded by the Board. Subsequent to the Board's remand, the Veteran's claim was granted. As this represents a full grant of the benefit sought, i.e., an award of service connection, that issue is no longer on appeal. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. The Veteran was awarded service connection for his right ankle disability in the rating decision on appeal and was awarded a 10 percent disability rating. He asserts that the severity of his disability warrants a higher rating. For the reasons that follow, the board finds that a higher rating is not warranted. 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."). The Veterans right ankle disability is currently assigned a 10 percent disability rating under Diagnostic Code 5271. The Board notes that the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5271, were amended during the pendency of the appeal effective February 7, 2021. Prior to the regulatory change, Diagnostic Code 5271 assigned a 20 percent rating for marked limitation of motion of the ankle and a 10 percent rating for moderate limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2020). The regulatory change amended the diagnostic code to define marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and to define moderate limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 85 Fed. Reg. 76453 (Nov. 30, 2020). The normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. Notably, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. However, a 10 percent rating can be assigned for the ankle joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Turning to the evidence, the Veteran was afforded a VA examination for his initial service connection claim in January 2015. The examination report notes the Veteran reporting "achy" pain, with selling and increased pain during a flare-up, which he also reported occurred once every six months or so. Upon physical examination, ROM was normal in dorsiflexion but reduced to 15 degrees in plantar flexion and dorsiflexion, including after repetitive use testing. Muscle strength was normal, and no instability or dislocation was suspected. The Board notes, however, that the DBQ indicates that stability testing was unable to be performed. VA examinations were afforded to the Veteran for his increased rating appeal in March 2017 and, pursuant to the Board's remand, in January 2021. During these examinations, ROM testing was performed and showed, at worst, dorsiflexion reduced to 10 degrees and plantar flexion reduced to 15 degrees in the more recent examination. While muscle strength was slightly reduced during these examinations, there was again no instability or dislocation suspected. There are no treatment records in significant conflict with the examination findings. Based on the foregoing, the Board finds that the criteria for a higher rating for the Veteran's left ankle disability have not been met. The Board notes that "Moderate," as relevant to a physical condition, is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed July 8, 2021). Certain sections of the Rating Schedule use the term "marked" which the Board equates as similar to "severe." "Severe" is defined as "very painful or harmful" or "of a great degree." Id. Here, plantar flexion was reduced at most to 15 degrees and dorsiflexion reduced at most to 10 degrees. For limitation of motion to be of a great degree, the Board would expect it to be reduced greater than 75 percent from normal. As such, the Board will consider less than 10 degrees plantar flexion and less than 5 degrees dorsiflexion to constitute marked limitation of motion for the version of the diagnostic code in effect prior to February 7, 2021. Moreover, while the new rating criteria can only be applied from February 7, 2021, onward, its definition of "marked" as manifesting less than 10 degrees plantar flexion and less than 5 degrees dorsiflexion is further evidence that range of motion in the Veteran's right ankle during the entire period has more closely approximated moderate reduction. While the Board acknowledges the Veteran's argument, through his representative prior to its last remand, that he was not examined during a flare-up, the ROM findings noted in the subsequent VA examination in 2021 that was ordered by the Board considered the Veteran's statements during such circumstances. The findings of plantar flexion reduced to 15 degrees and dorsiflexion reduced to 10 degrees represent the examiner's estimated loss of function during such flare-ups. Overall, these findings represent that the severity of the Veteran's right ankle disability warrants no more than the 10 percent rating currently assigned for moderate limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. The Board has also considered whether the Veteran is entitled to an increased or separate rating under any alternative diagnostic code for the ankle. However, the evidence fails to establish ankylosis of any kind, malunion of the os calcis or astragalus, or an astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274. The Board acknowledges that the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can nevertheless satisfy the criteria for a rating based on ankylosis. See Chavis v. McDonough, No. 18-2928, slip op. at 11 (U.S. Vet. App. Apr. 16, 2021). Here, however, despite the Veteran's complaints, pain did not result in the functional equivalent of ankylosis of the right ankle at any time during the period on appeal. In this regard, ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). The Veteran has not described, including during any medical examination, a limitation of motion during flareups of pain that essentially results in stiffening, fixation, or immobility of his right ankle. As the evidence is against a finding that the severity of the Veteran's right ankle disability more nearly approximates the criteria for a higher rating during the period on appeal, an increased rating is not warranted. 38 C.F.R. §§ 4.3, 4.7. The Board is sympathetic to the Veteran's lay statements that his ankle disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms that require only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined and interviewed him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. The Board notes that it can nevertheless determine whether the Veteran's claims should be referred to the Director of VA's Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the schedular ratings for that disability are inadequate when comparing the level of severity of the disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and an assigned rating is adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the Veteran's disability picture is not so unusual or exceptional in nature as to make the schedular rating inadequate. The disability has been rated under the applicable Diagnostic Codes that specifically contemplate the level of occupational and social impairment caused by the Veteran's service-connected right ankle disability. A comparison between the level of severity and symptomatology of the assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, taking into consideration his complaints of pain, limitation of motion, and functional impairment. See 38 C.F.R. §§ 4.40, 4.45. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular rating is found to be adequate. Accordingly, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. 111. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.