Citation Nr: 22014808 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 18-23 321 DATE: March 15, 2022 ORDER Prior to August 7, 2020, an initial rating of 20 percent under DC 5242, but no higher, for a low back disability is granted. From August 7, 2020, an initial rating in excess of 20 percent under DC 5242, for a low back disability is denied. Over the entire appeal period, a rating in excess of 10 percent for a right ankle disability is denied. FINDINGS OF FACT 1. Over the entire appeal period, the Veteran's low back disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; there is no evidence of ankylosis or functional ankylosis; and there is no evidence of incapacitating episodes of IVDS with physician prescribed bedrest. 2. Over the entire appeal period, the Veteran's right ankle disability has resulted in moderate, but not marked, limitation of motion; and there is no evidence of right ankle ankylosis or functional ankylosis at any point in the appeal period. CONCLUSIONS OF LAW 1. Prior to August 7, 2020, the criteria for an initial rating of 20 percent, but no higher, for a low back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. 2. From August 7, 2020, the criteria for an initial rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. 3. Over the entire appeal period, the criteria for a rating in excess of 10 percent for the residuals of right ankle fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-74. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1990 to May 1994 and March 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2018 and June 2021 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In a July 2019 decision, the Board denied entitlement to increased ratings for the Veteran's service-connected right ankle and low back disabilities. The Veteran appealed these denials to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court granted the parties' April 2020 Joint Motion for Partial Remand (JMPR). Under the JMPR, the parties agreed that the Board's July 2019 decision relied on January 2018 VA examinations which failed to provide all required evaluations. The Board's decision was vacated, and the claims returned to the Board for readjudication in accordance with the JMPR. In February 2021, the Board remanded the claims. The RO was directed to provide additional VA back and ankle examinations which included all evaluations necessary to fully assess the back and right ankle disabilities. Additional examinations were provided in April 2021 and the claims returned to the Board. In September 2021, the Board found the April 2021 VA examinations also failed to provide the required evaluations. The claims were remanded again for additional development. This development included updating the contact information for the Veteran's representative, obtaining outstanding VA treatment records, assisting the Veteran in obtaining private treatment records, and providing additional VA back and ankle examinations. The claims are now returned to the Board. The record shows the representative's address has been updated, additional VA treatment records are associated with the file, and new VA examinations were provided. A VA letter of September 2021 requested that the Veteran provide copies of private treatment records or provide authorization for VA to request the records. The Veteran did not respond to the request. The Board finds there has been substantial compliance with the September 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board notes that the criteria for rating musculoskeletal disabilities have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422(2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The regulation changes, as applicable to the Veteran's claims, are discussed below. 1. Entitlement to an initial increased rating for a low back disability, currently rated as 10 percent disabling prior to August 7, 2020 and as 20 percent disabling thereafter In October 2017, the Veteran filed a claim seeking entitlement to service connection for a back disability. A January 2018 rating decision established service connection for lumbar degenerative disc disease with spondylosis. The disability is currently rated as 10 percent disabling prior to August 7, 2020, and as 20 percent disabling thereafter under DC 5242-5243. This hyphenated DC indicates that the Veteran's back lumbar arthritis is evaluated using the rating criteria for intervertebral disc syndrome (IVDS). See 38 C.F.R. § 4.27. Here, the Veteran seeks an increased initial rating for his low back condition. Spine disabilities are typically rated under the same general formula, except for IVDS, which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. Certain changes to the musculoskeletal rating criteria went into effect on February 7, 2021, including to the diagnostic code relevant to IVDS. This code now requires there be disc herniation with compression and/or irritation of the adjacent nerve root. The rating criteria formula remained the same. The Board notes no changes were made to the General Rating Formula for Diseases or Injuries of the Spine or associated diagnostic codes. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent rating for a lumbar spine disability is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of these evaluations under the general formula for rating spine injuries consider the disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. In April 2017, the Veteran reported back pain to his VA primary care provider. In May 2017, he received VA acupuncture treatment for back pain. A January 2018 VA urology note documents constant dull aching back pain with intermittent sharp/shooting pain. This back pain did not radiate. In January 2018, a VA back conditions examination was provided. The examiner diagnosed lumbar degenerative disc disease and spondylosis. The Veteran reported chronic back pain which worsened in cold weather. He avoided strenuous activities, like shoveling, because they caused increased pain. The examiner noted flare ups, as indicated in the Veteran's reported medical history. The initial range of motion for the thoracolumbar spine was from zero to 70 in forward flexion; from zero to 30 degrees in extension, from zero to 25 degrees in right lateral flexion, from zero to 30 degrees in left lateral flexion; and, from zero to 30 degrees in right and left lateral rotation. Pain was observed in right lateral flexion, but it was not associated with functional loss. After repetitive use testing (with at least 3 repeated motions), range of motion remained the same. With repeated use over time and during flare ups, the examiner stated pain would significantly limit functional ability. However, he did not provide any estimate of additional loss of range of motion with use over time or during flare ups. Full muscle strength, no muscle atrophy, normal reflexes, normal sensation, no ankylosis, and no neurological abnormalities were noted. The examiner indicated IVDS was diagnosed, but there were no episodes of physician prescribed bedrest in the prior year. In December 2018, a VA primary care nurse noted low back pain, but no radicular symptoms. In February 2019, a VA neurosurgeon provided an orthopedic surgery consult. The neurosurgeon described progressive low back pain without lower extremity symptoms, such as numbness, weakness, paresthesias, or pain. The Veteran did not have any bowel or bladder issues. The neurosurgeon stated the Veteran had tried "all conservative measures" to alleviate his back pain. However, he did not recommend surgery because there were no radicular or neurogenic symptoms. In January 2020 and in April 2020, the Veteran discussed his back pain and back pain medications with his VA primary care physician. On August 7, 2020, a second VA back conditions examination was provided. The examiner confirmed a diagnosis of lumbar spondylosis and degenerative disc disease. The Veteran reported chronic low back pain. He was unable to exercise as much as he would have liked. At times, with prolonged standing or driving, the Veteran became uncomfortable. The examiner indicated the Veteran experienced flare ups consistent with his reported history. The initial range of motion for the thoracolumbar spine was from zero to 60 in forward flexion; from zero to 20 degrees in extension, from zero to 20 degrees in right and left lateral flexion; and, from zero to 30 degrees in right and left lateral rotation. Pain, which did not result in functional loss, was observed in forward flexion. Pain was noted with weight bearing. After three repetitive uses, the Veteran's range of motion was unchanged. The examiner stated pain and lack of endurance would significantly limit functional ability with repetitive use over time and during flare ups, but she did not estimate the Veteran's range of motion under these circumstances. Guarding and muscle spasms were not present. Radiculopathy and ankylosis were not noted. The examiner stated IVDS was diagnosed, but there were no episodes of IVDS requiring physician prescribed bed rest over the prior 12-month period. An April 2021 VA Veteran Functional Assessment noted the Veteran had occasional back pain which hindered his ability to get up and down. The Veteran requested a cane. VA treatment notes from May 2021 show the Veteran reported worsening back pain and he was issued a cane. In July 2021, the Veteran reported his back pain had lessened after he reduces his alcohol consumption. In November 2021, a third VA back conditions examination was provided. The examiner diagnosed degenerative disc disease other than IVDS. The Veteran reported increased lower back pain which worsened with physical activity. His condition flared with prolonged sitting, standing, walking, bending, lifting, stair climbing, and mowing the lawn. Initial range of motion for the thoracolumbar spine was from zero to 60 in forward flexion; from zero to 20 degrees in extension, from zero to 25 degrees in right and left lateral flexion; and, from zero to 30 degrees in right and left lateral rotation. Pain was observed in forward flexion, extension, and right and left lateral flexion. Passive range of motion measurements were the same as the initial measurements. Pain was noted with weight bearing, in active motion, and in passive motion. Pain resulted in functional loss. After three repetitive motions, there was no additional loss of range of motion. During flare ups, pain, weakness, and lack of endurance significantly limited the Veteran's functional ability. During flare ups, the examiner estimated motion of the thoracolumbar spine would be reduced. In flare ups, he predicted range of motion would be from zero to 50 in forward flexion; from zero to 15 degrees in extension, from zero to 20 degrees in right and left lateral flexion; and, from zero to 25 degrees in right and left lateral rotation. The examiner did not evaluate range of motion after repetitive use over time. As the Veteran reported flare ups with prolonged sitting, standing, walking, bending, lifting, stair climbing, and mowing the lawn, his limitations during flare ups are equivalent to his limitations with repeated use over time. The examiner noted guarding which resulted in an abnormal gait which favored the right leg. He documented full muscle strength, no muscle atrophy, no radiculopathy, no radicular symptoms, and no ankylosis. IVDS was not diagnosed. The Veteran regularly used a cane. The November 2021 examination provides the evaluations required under Sharp and Correia. The evidence shows, over the entire appeal period, the Veteran's back disability has resulted in limited range of motion, but there are no periods of physician prescribed bed rest. Accordingly, his back disability is most appropriately rated under the criteria for degenerative arthritis of the spine (DC 5242), rather than under the criteria for IVDS (DC 5243). See Butts, supra. The evidence also shows, the Veteran's back disability has been characterized by painful and limited motion over the entire appeal period. In January 2018, forward flexion was limited to 70 degrees, and, in August 2020, forward flexion was limited to 60 degrees. Although the Veteran reported flares of his symptoms, the January 2018 and August 2020 examiners did not provide any estimate for his range of motion during flare ups. In November 2021, initial forward flexion continued to be limited to 60 degrees. The examiner estimated forward flexion would be additionally limited, during flare ups, to 50 degrees. Resolving reasonable doubt in favor of the Veteran, his forward flexion over the entire appeal period was limited to 50 degrees during flare ups. Accordingly, a 20 percent rating for the low back disability is warranted over the entire appeal period. There is no evidence of ankylosis of the low back or any restriction of motion which approximated ankylosis over the entire appeal period. A rating in excess of 20 percent is not warranted at any time. 38 C.F.R. § 4.71a, DC 5242. Over the appeal period there is no evidence of any neurological condition associated with the low back disability. Separate ratings for such conditions are not indicated. 2. Entitlement to a rating in excess of 10 percent for residuals of right ankle disability In October s2017, the Veteran filed a claim seeking an increased rating for his already service-connected right ankle disability. This disability is identified as the residuals of a fractured right ankle and it is currently rated as 10 percent disabling under DC 5271 over the entire appeal period. Normal range of motion of the ankle includes dorsiflexion from zero to 20 degrees, and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. Prior to February 7, 2021, under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum, 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Higher ratings for the ankle are warranted only when the ankle is ankylosed. Ankylosis of the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion between zero and 10 degrees, warrants a 30 percent rating. Ankylosis of the ankle in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5270. The words "moderate" and "marked," as used in the various diagnostic codes applicable to the appeal period prior to February 7, 2021, are not defined in the VA Schedule for Rating Disabilities. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Under the new criteria, effective February 7, 2021, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. The Board notes, VA's Adjudication Procedures Manual provides additional guidance on the matter. Specifically, prior to February 7, 2021, the manual instructs an example of "moderate" limitation of ankle motion is when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while an example of "marked" limitation of ankle motion is when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VA Adjudication Procedures Manual, M21-1, III.iv.4.A.6.m (April 13, 2018). Although the Board is not bound by the VA Adjudication Manual, it provides useful guidance. DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"). The Court of Appeals for Veterans Claims (Court) has recently held the M21-1 constitutes a "relevant factor" that the Board cannot ignore in its analysis with the Board rather being required to provide reasoning for declining to follow a specific M21-1 provision. See Healy v. McDonough, 33 Vet. App. 312, 320 (2021). Thus, the Board finds the M21-1 parameters of "moderate" and "marked" limitation of motion of the ankle relevant in its analysis of the proper rating assigned under Diagnostic Code 5271 prior to the implementation of the new rating criteria effective February 7, 2021, as the new amendments to Diagnostic Code 5271 simply codified the standards that were already being applied by VA with respect to ankle limitation of motion. In November 2017, a VA ankle conditions examination was provided. A diagnosis of residuals of a right ankle fracture was confirmed. The Veteran reported pain in his lateral right ankle which worsened with prolonged weight bearing. He sometimes wore boots when he anticipated doing a lot of walking. His ankle symptoms flared with cold weather. Initial range of motion was measured, in dorsiflexion, from zero to 15 degrees; and, in plantar flexion, from zero to 40 degrees. After observed repetitive use, range of motion was unchanged. With repeated use over time, pain, weakness, fatigability or incoordination did not significantly limit functional ability. During flares, pain and lack of endurance significantly limited functional ability, but the examiner did not provide any estimate as to the ankle range of motion during flare ups. A November 2017 VA podiatry consult note documents the Veteran's report of chronic right ankle pain. The Veteran reported his ankle bothered him when he was on his feet for a long time or when his foot was placed in a certain position. His right ankle was not bothersome every day. In April 2021, a second VA ankle examination was provided. The Veteran reported his ankle condition was affected by temperature changes and became uncomfortable with prolonged walking or standing. No flare ups were reported. Initial right ankle range of motion was normal (dorsiflexion to 20 degrees and plantar flexion to 45 degrees.) Passive range of motion was the same. There was no evidence of pain with motion. Range of motion after observed repetitive use was unchanged. The examiner predicted there was no loss of range of motion with repetitive use over time. Right ankle ankylosis was not present. In November 2021, a third VA ankle conditions examination was provided. The Veteran reported increased right ankle pain with weight bearing and decreased range of motion. He also reported flares ups of increased pain. The flare ups were associated with increased activity including prolonged standing, walking, stair climbing, pivoting off the right foot, and driving. Right ankle pain interfered with his ability to stand, walk, stair climb, pivot, and drive. Initial active range of motion and passive range of motion were measured, in dorsiflexion to 15 degrees and, in plantar flexion to 30 degrees. Pain was observed in dorsiflexion and plantar flexion. The examiner observed pain with weight-bearing, passive motion, and active motion. The pain was associated with functional loss. Function and range of motion were not reduced after observed repetitive use. Although the examiner indicated repetitive use over time would not additionally limit functional ability, he predicted pain would limit functional ability during flare ups. As flares were reported with prolonged use, this evaluation is applicable for periods of repetitive use. For flares, the examiner estimated dorsiflexion would be limited to 10 degrees and plantar flexion would be limited to 25 degrees. This examination provided the evaluations required under Correia and Sharp. Over the appeal period, the Veteran reported right ankle pain. Pain increased during flares related to weather and increased or prolonged use. Movement in his ankle was limited as documented by VA examinations. Prior to November 2021, no evaluation was provided for limitation of motion during flare ups. Accordingly, the November 2021 evaluation for flare ups is applicable over the entire appeal period. Thus, over the entire appeal period, dorsiflexion was limited to 10 degrees and plantar flexion was limited to 25 degrees. This indicates a moderate limitation of motion. The evidence does not support a finding of marked limitation of motion at any time, or under any conditions, over the appeal period. Further, there is no evidence of right ankle ankylosis or functional ankylosis at any time. A rating in excess of 10 percent is not warranted under the rating criteria effective prior to February 7, 2021, or under the rating criteria effective after February 7, 2021. 38 C.F.R. § 4.71a, DC 570, 5271. The Board notes other diagnostic codes related to the ankle, to include Diagnostic Code 5273 and Diagnostic Code 5274, are not for application in the Veteran's appeal because there is no evidence of that he has malunion of the os calcis or astragalus or that he has undergone astragalectomy. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.