Citation Nr: 22012303 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-30 178 DATE: March 3, 2022 ORDER A 20 percent rating for right ankle sprain with degenerative joint disease is granted. A 20 percent rating for left ankle sprain with degenerative joint disease is granted. A temporary total rating for convalescence after left ankle stabilization surgery from March 28, 2014, to June 2, 2014, is granted. An effective date of March 28, 2014, for left ankle scar is granted. FINDINGS OF FACT 1. The Veteran's bilateral ankle disabilities more closely approximate a marked disability; ankylosis was not shown. 2. The Veteran underwent left ankle surgery on March 28, 2014 and had convalescence until June 2, 2014. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for right ankle sprain with degenerative joint disease are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.59, 4.71a, Diagnostic Code (DC) 5003-5271. 2. The criteria for a 20 percent rating for left ankle sprain with degenerative joint disease are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.59, 4.71a, DC 5003-5271. 3. The criteria for a temporary total rating for left ankle surgery from March 28, 2014, to June 2, 2014 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400 (o), 4.1, 4.3, 4.7, 4.30. 4. The criteria for an effective date of March 28, 2014, for the Veteran's left ankle scar are met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to September 2001. In December 2021, a rating decision increased the Veteran's bilateral ankle disability ratings to 20 percent effective December 3, 2021 and granted service connection for a left ankle surgical scar as of December 3, 2021. As this does not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Bilateral Ankles The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. The Board finds that the prior criteria used for rating the Veteran's ankle disabilities is more favorable to the Veteran. The Veteran's left ankle disability is rated under Diagnostic Code 5271. Prior to the 2021 revisions, DC 5271 provided that moderate limitation of motion of the ankle was rated as 10 percent disabling and marked limitation of motion of the ankle was rated as 20 percent disabling. 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. The Veteran's June 2012 VA examination showed the Veteran reported that flare-ups impacted his ability to walk which lasted for 24 hours. Functional loss was noted caused by instability, swelling, and disturbance of locomotion. Laxity was noted and interference with sitting, standing, and weight bearing was reported. He had localized tenderness or pain on palpation. He reported that he was being recommended for surgery. VA medical records show that he had an MRI performed in January 2014 which documented bilateral ankle instability. His VA medical records also document continued complaints of pain and impact on the Veteran's activities including walking and standing for prolonged periods of time. A May 2019 VA examination of the Veteran's hips noted the Veteran reported inference with standing or prolonged walking due to pain in his ankles. A November 2019 VA examination noted the Veteran had functional impact in limited abilities to run, walk, or stand. After review of the record the Board finds that the Veteran's bilateral ankle disabilities more closely approximate marked disabilities, warranting a 20 percent rating since the Veteran's 2012 grant of service connection. Considering the totality of the evidence and the impact the Veteran's bilateral ankle disabilities have had in his ability to walk, run, or stand, the Board finds that both ankles present a marked disability. As such, a 20 percent rating is granted. The Board notes that higher ratings for the Veteran's ankle disabilities would necessitate a finding of ankylosis in his ankles. None of the Veteran's treatment records, including his VA examinations and VA medical care, document any degree of ankylosis in either of his ankles. As such, a rating higher than 20 percent is not supported by the record. Left Ankle Convalescence A total rating (100 percent) for convalescence will be assigned when it is established that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. It is clear from the record that the Veteran underwent left ankle surgical stabilization surgery on March 28, 2014. See March 2014 VA medical record. A May 2014 VA medical record indicated that the Veteran had been non-weight bearing on his left ankle since his March surgery and was confined to a boot. The May 12, 2014, record showed the Veteran was released to weight bearing at that time, but confined to a boot for 3 more weeks, until June 2, 2014. The Board finds that use of a walking boot cast amounts to therapeutic immobilization by cast. Thus, the Board finds that the criteria for a temporary total rating for the Veteran's left ankle disability is warranted from his March 28, 2014, surgery to his projected release from use of a boot until June 2, 2014. (Continued on the next page) Left Ankle Scar As stated above, a December 2021 rating decision granted service connection for the Veteran's left ankle surgical scar as of a December 2021 VA examination. However, as noted, the Veteran underwent ankle surgery on March 28, 2014. Thus, service connection is warranted as of that date. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.