Citation Nr: 22012280 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 19-33 555 DATE: March 3, 2022 ORDER Entitlement to an initial rating of 20 percent, but no higher, for right ankle lateral collateral ligament sprain with plantar calcaneal spur is granted. Entitlement to an initial rating of 20 percent, but no higher, for left ankle lateral collateral ligament sprain with plantar calcaneal spur is granted. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to December 17, 2020, is denied. Entitlement to a rating in excess of 20 percent for bilateral hearing loss from December 17, 2020, is denied. FINDINGS OF FACT 1. The Veteran's service-connected left ankle disability has been manifested by marked limitation of motion. 2. The Veteran's service-connected right ankle disability has been manifested by marked limitation of motion. 3. Prior to December 2020, the Veteran's hearing impairment was shown to be no worse than Level V in the right ear and Level IV in the left ear. 4. From December 2020, the Veteran's hearing impairment was shown to be no worse than Level V in the right ear and Level V in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating 20 percent, but not higher, for the service-connected left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Code 5271. 2. The criteria for a rating 20 percent, but not higher, for the service-connected right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Code 5271. 3. The criteria for a disability rating in excess of 10 percent for bilateral hearing loss disability prior to December 17, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.85. 4.86, Diagnostic Code 6100. 4. The criteria for a disability rating in excess of 20 percent for bilateral hearing loss disability from December 17, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.85. 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps from June 1960, to May 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September2017rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO). These matters were previously before the Board in June 2020 but were remanded for further development. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in connection with a claim for an initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 1. Bilateral ankle disability The Veteran's bilateral ankles are currently rated as 10 percent disabling under diagnostic code 5010-5257. The Veteran's ankle disabilities are currently rated under hyphenated diagnostic code 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code (DC) requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, DC 5010 provides that traumatic arthritis substantiated by x-ray findings is rated as degenerative arthritis (DC 5003); meaning that a rating under this DC will be based either on limitation of motion of the affected joint under the appropriate diagnostic code or, if only a noncompensable limitation of motion is found, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id. DC 5271 provides rating criteria based on limitation of motion of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a, DC 5271. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). During the relevant period, the Veteran has undergone several VA examinations for his ankle. In an August 2017 VA examination, the Veteran reported experiencing flare ups. Pain was noted on examination that caused additional functional loss. The initial range of motions (ROM) for the right ankle was dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 15 degrees. The initial ROM for the left ankle was dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 15 degrees. There was no additional ROM loss noted for either ankle after repetitive use, repeated use, or flare ups. There was no ankylosis of either ankle noted. The Veteran was given another VA examination in February 2021. Right ankle initial ROM was measured a dorsiflexion 0 to 10 degrees and planar flexion 0 to 15 degrees. Pain noted on examination but does not result in additional functional loss. Left ankle initial ROM was measured as dorsiflexion 0 to 5 degrees and planar flexion 0 to 10 degrees. Pain noted on examination but does not result in additional functional loss. Evidence of additional pain with weight bearing and additional functional loss after three repetitions. Plantar flexion limited 0 to 10 degrees and dorsiflexion limited 0 to 5 degrees bilaterally. Repeated use over time ROM measured as plantar flexion limited 0 to 10 degrees and dorsiflexion limited 0 to 5 degrees bilaterally. Estimated ROM during flare ups Plantar flexion limited 0 to 10 degrees and dorsiflexion limited 0 to 5 degrees bilaterally. No additional contributing factors of disability bilaterally. No reduction in muscle strength, atrophy or ankylosis was noted. Bilateral ankle instability and bilateral shin splints was noted but does not affect ROM and was indicated as acute/resolved. Objective evidence of pain on passive range of motion testing bilaterally; no objective evidence of pain when non-weight bearing bilaterally. The Veteran was given another VA examination in April 2021. The examiner noted that there were no flare ups reported. Right ankle initial ROM was measured a dorsiflexion 0 to 5 degrees and planar flexion 0 to 30 degrees. Pain noted on examination but does not result in additional functional loss. Left ankle initial ROM was measured as dorsiflexion 0 to 5 degrees and planar flexion 0 to 40 degrees. Pain noted on examination but does not result in additional functional loss. There was no additional functional loss noted after repetitive use. Repeated use over time ROM measured as plantar flexion limited 0 to 30 degrees and dorsiflexion limited 0 to 5 degrees for the right ankle. Repeated use over time ROM measured as plantar flexion limited 0 to 40 degrees and dorsiflexion limited 0 to 5 degrees for the right ankle. Estimated ROM during flare ups Plantar flexion limited 0 to 10 degrees and dorsiflexion limited 0 to 5 degrees bilaterally. No additional contributing factors of disability bilaterally. No reduction in muscle strength, atrophy or ankylosis was noted. Bilateral ankle instability and bilateral shin splints was noted but does not affect ROM and was indicated as acute/resolved. Objective evidence of pain on passive range of motion testing bilaterally; no objective evidence of pain when non-weight bearing bilaterally. At worst, the Veteran's most reduced range of motion was measured as plantar flexion limited 0 to 10 degrees and dorsiflexion limited 0 to 5 degrees bilaterally. See, e.g., February 2021 VA examination. During the VA examinations, he had bilateral ankle pain and did not have ankylosis. Accordingly, the Board finds that a 20 percent evaluation for left ankle disability based on marked limitation of motion is satisfied and a 20 percent evaluation for right ankle disability based on marked limitation of motion is satisfied. The only diagnostic code for ankle disorders that offers a potentially higher rating than 20 percent for the Veteran's ankle disabilities are for ankylosis of the ankle. The record does not support that the Veteran has ankylosis, let alone of sufficient severity to meet the criteria for a 30 or 40 percent rating. Most notably, the VA examiners concluded that the Veteran does not have ankylosis of the ankles. The record includes multiple lay statements by the Veteran, in support of his increased rating claim. These statements consistently describe the severe pain experienced by the Veteran, that this pain has gotten worse over time. The Veteran is competent to report the extent of his physical abilities while experiencing left ankle pain, thus his lay statements are competent evidence of his ankle pain. See Jandreau v. Nicholson, 492 F. 3d 1372 (2007). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined 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 this disability is evaluated. Thus, after considering the evidence of record, the Board finds that the Veteran's left and right ankle disability picture more nearly approximates the criteria for a 20 percent rating, but no higher, for marked limitation of motion. 2. Bilateral hearing loss The Veteran's bilateral hearing loss is currently rated under diagnostic code 6100. The Veteran's hearing loss is currently rated in stages. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hearing loss is evaluated under Diagnostic Code 6100. The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id. See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). However, not all patterns of hearing loss are rated in this manner. For example, if the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). See also 38 C.F.R. §§ 4.85 (c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). a. From June 15, 2017, to December 17, 2020 In June 2017, the Veteran submitted a claim for an increased rating for his hearing loss. The Veteran was afforded a VA examination in August 2017. The August 2017 VA examination audiometric results show that the Veteran's average puretone threshold (calculated by taking the average, in decibels, of the thresholds at 1000, 2000, 3000, and 4000 hertz) in the right ear was 62.5 decibels. The decibel loss was measured at the puretone threshold of 500 Hertz (Hz) is 30, at 1000 Hz is 55, at 2000 Hz is 70, at 3000 Hz is 60, and at 4000 Hz is 65. The Veteran's average puretone threshold in the left ear was 58.75 decibels. The decibel loss was measured at the puretone threshold of 500 Hertz (Hz) is 25, at 1000 Hz is 55, at 2000 Hz is 55, at 3000 Hz is 65, and at 4000 Hz is 60. Speech audiometry showed speech recognition ability of 96 percent in the right ear and of 90 percent in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 and § 4.86 to these audiometric results yields a roman numeral II for the right ear; and a roman numeral III for the left ear, based on Table VI. A combination of II and III equates to a noncompensable disability rating according to Table VII. Using just the Puretone threshold ranges; the Veteran's right ear was measured as a V and the Veteran's left ear was measured as a IV. A combination of V and IV equates to a 10 percent disability rating according to Table VII. In light of the foregoing, it is the Board's conclusion that the approximate balance of the evidence is against the claim for a disability rating in excess of 10 percent prior to December 2020 for bilateral hearing loss. As set forth above, the only available audiometric reports demonstrate entitlement to nothing more than that. Treatment records during the appeal period do not otherwise show a higher level of impairment. The Board acknowledges the lay evidence of record, including the Veteran's assertions of increased difficulty in understanding conversations. He was competent to report such difficulties; however, as noted, disability ratings for hearing loss are derived from a mechanical application of the rating schedule. The functional impacts that the Veteran described are fully contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this conclusion, the Board has considered the doctrine of reasonable doubt; however, as the approximate balance of the evidence is against the claim, that doctrine is not for application. 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The appeal of this issue must be denied. b. From December 17, 2020 The Veteran appealed the September 2017 rating decision that granted the Veteran a 10 percent disability rating for bilateral hearing loss. In his November 2019 Form 9, the Veteran alleged that his hearing had worsened. The Veteran was afforded a VA examination on December 17, 2020. The December 2020 VA examination audiometric results show that the Veteran's average puretone threshold (calculated by taking the average, in decibels, of the thresholds at 1000, 2000, 3000, and 4000 hertz) in the right ear was 68 decibels. The decibel loss was measured at the puretone threshold of 500 Hertz (Hz) is 35, at 1000 Hz is 55, at 2000 Hz is 75, at 3000 Hz is 70, and at 4000 Hz is 70. The Veteran's average puretone threshold in the left ear was 65 decibels. The decibel loss was measured at the puretone threshold of 500 Hertz (Hz) is 30, at 1000 Hz is 55, at 2000 Hz is 70, at 3000 Hz is 70, and at 4000 Hz is 65. Speech audiometry showed speech recognition ability of 84 percent in the right ear and of 72 percent in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 and § 4.86 to these audiometric results yields a roman numeral III for the right ear; and a roman numeral V for the left ear, based on Table VI. A combination of III and V equates to a 10 percent disability rating according to Table VII. Using just the Puretone threshold ranges; the Veteran's right ear was measured as a V and the Veteran's left ear was measured as a V. A combination of V and V equates to a 20 percent disability rating according to Table VII. In light of the foregoing, it is the Board's conclusion that the approximate balance of the evidence is against the claim for a disability rating in excess of 20 percent from December 2020 for bilateral hearing loss. As set forth above, the only available audiometric reports demonstrate entitlement to nothing more than that. Treatment records during the appeal period do not otherwise show a higher level of impairment. The Board acknowledges the lay evidence of record, including the Veteran's assertions of increased difficulty in understanding conversations. He was competent to report such difficulties; however, as noted, disability ratings for hearing loss are derived from a mechanical application of the rating schedule. The functional impacts that the Veteran described are fully contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). (CONTINUED ON NEXT PAGE) In reaching this conclusion, the Board has considered the doctrine of reasonable doubt; however, as the approximate balance of the evidence is against the claim, that doctrine is not for application. 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The appeal of this issue must be denied. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.