Citation Nr: 22015040 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-14 232 DATE: March 16, 2022 ORDER A rating in excess of 10 percent for extensor tenosynovitis for the right wrist (hereinafter right wrist disability) is denied. A rating in excess of 10 percent for extensor tenosynovitis for the left wrist (hereinafter a left wrist disability) is denied. Prior to September 21, 2021, a rating in excess of 10 percent for a right ankle sprain with instability status post arthroscopic surgery (hereinafter a right ankle disability) is denied. Beginning September 21, 2021, a rating of 20 percent for a right disability is granted. Beginning January 25, 2016, a separate rating of 10 percent for right ankle instability is granted. FINDINGS OF FACT 1. The Veteran's right wrist disability did not manifest as dorsiflexion less than 15 degrees and was found not to have favorable nor unfavorable ankylosis of the wrist, and did not manifest with x-ray evidence of arthritis with involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 2. The Veteran's right wrist disability manifested with painful motion and with x-ray evidence of arthritis with involvement of two or more major joints or two or more minor joint groups. 3. The Veteran's left wrist disability did not manifest as dorsiflexion less than 15 degrees and was found not to have favorable nor unfavorable ankylosis of the wrist, and did not manifest with x-ray evidence of arthritis with involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 4. The Veteran's left wrist disability manifested with painful motion and with x-ray evidence of arthritis involvement of two or more major joints or two or more minor joint groups. 5. Prior to September 21, 2021, the Veteran's right ankle disability manifested as moderate limitation of motion with less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. 6. Beginning September 21, 2021, the Veteran's right ankle disability manifested as marked limitation of motion with less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. 7. Beginning January 25, 2016, the Veteran's right ankle disability manifested as slight instability and as a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right wrist disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5024. 2. The criteria for a rating in excess of 10 percent for a left wrist disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DCs 5003, 5024. 3. The criteria for a rating in excess of 10 percent for a right ankle disability prior to September 21, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5271. 4. The criteria for a 20 percent rating, but no higher, for a right ankle disability beginning September 21, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5271. 5. The criteria for a separate 10 percent rating for right ankle instability beginning January 25, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5299-5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active-duty service from August 1996 to September 2004. These matters are before the Board of Veteran's Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied an increased rating for his right and left wrist, and right ankle disabilities. The Veteran's claims were remanded by the Board in January 2019 and August 2021 for additional VA examinations. The requested actions have been undertaken. Accordingly, there has been substantial compliance with the prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board notes in the August 2021 Board remand, the Veteran's appeal also contained remand directives indicating development was needed for any psychiatric disabilities the Veteran suffered from due to his bilateral wrist and right ankle disabilities. Service connection for alcohol use disorder associated with the Veteran's right ankle disability was granted service connection in an October 2021 rating decision. That award constitutes a full grant of the disability sought, and that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that 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. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods based on the facts found a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping, such as pyramiding, with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45 , 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Each section below will address the amendments to the musculoskeletal disability regulations for each individual disability. Bilateral Wrist Disabilities The Veteran asserted that he was entitled to evaluations in excess of 10 percent for both his left and right wrist disabilities. Specifically, the Veteran indicated he wanted a 20 percent disability rating for each wrist. See September 2016 Notice of Disagreement. The Veteran's wrist conditions are governed by 38 C.F.R. § 4.71a DC 5024, which prior to the regulatory change on February 7, 2021, included a note that directed the diseases under DCs 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002. As of February 7, 2021, under the amended regulatory criteria the note indicates, "Note to DCs 5013 through 5024: Evaluate the disease under diagnostic codes 5013 through 5024 as degenerative arthritis, based on limitation of motion of affected parts." DC 5003 (prior to the regulatory change on February 7, 2021) was titled arthritis, degenerative (hypertrophic or osteoarthritis). DC 5003 (as of February 7, 2021, under the amended regulatory criteria) is titled, degenerative arthritis, other than post-traumatic. This was the only regulatory change in DC 5003. The DC indicates degenerative arthritis is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: 20 percent requires x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent disability rating requires x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note (1): the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. The Veteran's wrist disabilities are also evaluated under limitation of range of motion, which is governed by DC 5215, which was substantively unchanged as to the requirements prior to and as of the February 7, 2021, regulatory changes. The only change was the removal of the word "degrees." DC 5215 found that a 10 percent disability rating required dorsiflexion less than 15 degrees for both the dominant and non-dominant wrists, and also that a 10 percent disability required palmar flexion limited in line with the forearm for both the dominant and non-dominant wrists. See 38 C.F.R. § 4.71a DC 5215. The Veteran received a wrist VA examination in April 2016 that noted the Veteran's bilateral extensor tenosynovitis. The examiner indicated that the Veteran was left handed. The Veteran reported since his last examination that his bilateral wrist condition had worsened and was not current receiving treatment. The Veteran reported flare ups with increased wrist pain during repetitive pushing or pulling. The Veteran's active range of motion (ROM) for his right and left wrists were measured with his palmar flexion at 45 degrees, dorsiflexion at 50 degrees, ulnar deviation at 30 degrees, and radial deviation at 15 degrees, with the loss of ROM contributing to functional loss which limited his ability with repetitive pushing or pulling. The Veteran had no pain on examination. The Veteran's ROM for repetitive use was the same as his active ROM. The examiner noted the Veteran's statements as to functional loss with repetitive use over time were neither medically consistent or inconsistent with the examination, and found that pain, lack of endurance, and fatigue significantly limited the functional ability of the Veteran's bilateral wrists, but found no loss of ROM. The Veteran's ROM was also estimated during flare ups which the examiner found the Veteran's statements to be neither medically consistent or inconsistent with the examination, and found that pain, lack of endurance, fatigue significantly limited the functional ability of the Veteran's bilateral wrists. The Veteran's ROM during flare ups for his right and left wrists were estimated with palmar flexion at 40 degrees, dorsiflexion at 45 degrees, ulnar deviation at 25 degrees, and radial deviation at 10 degrees. The examiner noted additional factors of less movement than normal and pain with flare ups for both wrists. The Veteran was found to have normal muscle strength, no muscle atrophy, with no use of assistive devices, and no finding of degenerative or traumatic arthritis. The examiner noted the functional impact of the Veteran being minimally limited in repetitive pushing or pulling on an occasional basis. The examiner failed to indicate any finding as to ankylosis. The Board finds the VA examination is competent, credible, and with significant probative weight. Pursuant to the Board remand of January 2019 the VA examination of April 2016 was found to be outdated as to the Veteran's bilateral wrist disabilities as there was a September 2016 x-ray that noted bilateral wrist arthritis. The Board remand directed an updated VA examination for his wrists was needed. The December 2019 VA examination for the Veteran's wrist disabilities noted the diagnoses of bilateral extensor tenosynovitis and bilateral degenerative arthritis, and the Veteran's right wrist post his open reduction and internal fixation (ORIF) surgery. The examiner indicated that the Veteran was right handed. The Veteran reported constant pain, worse in cold weather, and noted it hurt when turning or holding items. The Veteran reported flare ups of the right wrist in cold weather, in summer happening two times per month, of moderately severity lasting one to two days. The left wrist flare ups were reported as mostly moderate but were severe with continued activity, lasting one to two days. The Veteran's active ROM for his bilateral wrists were measured and found to be normal, palmar flexion at 80 degrees, dorsiflexion at 70 degrees, ulnar deviation at 45 degrees, and radial deviation at 20 degrees. The examiner found no pain on examination, found no loss of ROM during repetitive use, repetitive use over time, and with flare ups. The examiner further noted no functional loss during repetitive use over time and flare ups. The Veteran was found to have normal muscle strength, no muscle atrophy, and no ankylosis. The examiner noted no functional impact due to the Veteran's bilateral wrist disabilities, found no pain on passive ROM testing and on non-weight bearing for both wrists. The examiner noted no change in the Veteran's diagnoses but found the ORIF of the right wrist and the degenerative joint disease of both wrists were new and separate diagnoses. The Board finds the VA examination is competent, credible, and with significant probative weight. The Board's remand of August 2021 found a new VA examination was needed as the April 2016 and December 2019 VA examinations were inconsistent with each other and the Veteran had reported increased pain and additional limitations. The September 2021 wrist VA examination noted the Veteran's bilateral extensor tenosynovitis. The examiner indicated that the Veteran was left handed. The Veteran reported his current symptoms were sharp shooting pain when he raised his hand or held something, his left wrist being worse than his right. The pain caused him to open his hand and was often worse when cold making it difficult to carry objects. The Veteran reported he had no flare ups of his right wrist, but reported his left wrist flare ups caused extreme aching with pain all the way to his fingers and he could not hold anything due to pain. He reported flare ups happening two times per year, lasting up to a day, and missing work. The Veteran described his functional loss as working slower, having to constantly massage his wrists, found it difficult to play with his children and grandchildren, sometimes had to postpone work or adjust plans to compensate for pain. The Veteran's initial and passive ROM for his right wrist were measured with dorsiflexion at 55 degrees, palmar flexion at 45 degrees, ulnar deviation at 30 degrees, radial deviation at 20 degrees. The left wrist measured dorsiflexion at 55 degrees, palmar flexion at 40 degrees, ulnar deviation at 25 degrees, and radial deviation at 20 degrees. Both wrists were found to exhibit pain on dorsiflexion and palmar flexion. The examiner noted the right wrist exhibited pain on weight bearing, active and passive motion, causing functional loss. While the left wrist was found to exhibit pain on weight bearing, active and passive ROM, at rest, and caused functional loss. The Veteran indicated the functional loss caused his inability to coach boxing or work as a chef, always consider his wrist positions, worked slower, caused stress and depression, strained relationships, grooming difficulty, and was unable to do basic household chores. The examiner noted tenderness to both wrists with the right wrist at a mild severity and the left wrist at mild to moderate severity. The examiner noted no additional loss of function or ROM on repetitive use. However, with repetitive use over time the Veteran's ROM was affected by pain causing functional loss. The functional loss caused a loss of ROM for the Veteran with his right wrist dorsiflexion at 50 degrees, palmar flexion at 40 degrees, ulnar deviation at 30 degrees, radial deviation at 15 degrees. The Veteran's left wrist ROM was measured with dorsiflexion at 50 degrees, palmar flexion at 35 degrees, ulnar deviation, and radial deviation both at 20 degrees. The Veteran reported no flare ups for his right wrist. Flare ups for the Veteran's left wrist were noted to cause functional loss due to pain estimated with a ROM of dorsiflexion at 45 degrees, palmar flexion at 30 degrees, ulnar and radial deviation at 15 degrees. The examiner found no muscle atrophy, no ankylosis, and found a bony prominence on the ulnar side of each wrist. The Veteran noted occasional use of braces bilaterally and x-rays showing degenerative changes in both wrists. The examiner noted the Veteran's wrists caused a functional impact by causing the Veteran to lose 0 to 1 week of work in the last year, worked slower, could not work as chef or coach boxing, was always concerned about wrists, was unable to do household chores, and had to switch sides often when grooming. The Board finds the VA examination is competent, credible, and with significant probative weight. The Veteran submitted statements reporting pain in wrist joints, noting the medication he used did not help, and losing his grip on items due to pain. The Board finds the Veteran's statements are competent, credible, and with significant probative weight. The Board finds the Veteran's disability picture for his bilateral wrist disabilities more closely resembles a 10 percent disability rating for each wrist. In consideration of the Veteran's limitation of ROM under DC 5215, the Veteran is not entitled to a compensable rating for either wrist as he was never found to have dorsiflexion less than 15 degrees nor palmar flexion limited in line with his forearm. The Veteran's wrists have not been found to have a diagnosis of favorable nor unfavorable ankylosis in consideration of DC 5214, ankylosis of the wrist. While the Veteran has reported pain, fatigue, and flare ups, there was no indication that his functional impairment was worse than that reported at his VA examinations. Further, any additional limitation that he experienced due to pain, weakness, fatigability, lack of endurance, or incoordination was accounted for by the VA and was further considered by the Board. 38 C.F.R. § 4.40, 4.45. Additionally, under DCs 5003 and 5024 the Veteran is not entitled to an evaluation in excess of 10 percent for either wrist as he is already receiving recognition of a noncompensable rating under DC 5215 as indicated by DC 5003. The Board notes under DC 5003, the Veteran is also not entitled to a 20 percent disability rating as there has been no x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a DC 5003. The evidence of record is in favor of finding against the Veteran's claim for an evaluation in excess of 10 percent for his bilateral wrist disabilities. While the Board is sympathetic to the Veteran's report of symptoms, the medical evidence does not support a higher evaluation for his right and left wrist disabilities. The Board also finds that a staged rating is not appropriate. The Board acknowledges the Veteran's competence to describe the severity of his symptoms. However, lay persons are not competent to consider complex medical questions to include assessments of the nature and severity of the symptoms for purposes of establishing an increased rating claim or render a complex medical opinion or diagnosis in the absence of proof of relevant training and expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As the record is absent of any showing that the Veteran has the medical training or credentials to make such a determination, the Board finds that the determination of the severity of symptoms of the Veteran's right and left wrist disabilities to be outside the competence of the Veteran. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent and probative medical evidence of record. The Veteran asserted that he was entitled to extraschedular consideration for his bilateral wrist disabilities. To accord justice in exceptional cases where the schedular standards are found to be inadequate, a RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Based on a totality of circumstances, the Board finds the Veteran's bilateral wrist disabilities do not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. The Veteran reported pain, anticipation of pain, swelling, being slower at work, issues with pushing, pulling, grooming, holding and gripping items. The regular schedular standards are appropriate for application in this instance for both wrist disabilities. The Board finds that referral for consideration of an extraschedular rating is not warranted. See 38 C.F.R. § 3.321(b). Accordingly, the criteria for a rating in excess of 10 percent for a left wrist disability and a rating in excess of 10 percent for a right wrist disability have not been met, and the claims are denied. Right Ankle Disability The Veteran asserted he was entitled to an evaluation in excess of 10 percent for his right ankle disability. The Veteran's right ankle disability is governed by 38 C.F.R. § 4.71a DC 5271 which addresses limitation of motion of the ankle. Prior to the February 7, 2021, regulatory changes a 10 percent disability rating required moderate limitation of motion of the ankle and a 20 percent disability rating required marked limitation of motion of the ankle. As of February 7, 2021, regulatory changes a 10 percent disability rating required moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) limitation of motion and a 20 percent disability rating required marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) limitation of motion. Id. Other diagnostic codes that apply to the ankle include DC 5270 ankylosis of the ankle, DC 5272 subastragalar or tarsal joint ankylosis, DCC 5273 malunion of the os calcis or astragalus, and DC 5274 astragalectomy. None of these DCs apply to the Veteran's right ankle disability in this case and are not applicable herein. Prior to September 21, 2021 The Veteran received a VA examination for his ankle in April 2016 that noted his right ankle sprain with instability post arthroscopic surgery. The Veteran reported his right ankle pain as chronic and worsened over time with pain and swelling and had difficulty with prolonged weight bearing. The Veteran also noted during flare ups he experienced increased ankle pain with prolonged standing, walking, or running. The Veteran's active ROM measured with plantar flexion at 20 degrees and dorsiflexion at 20 degrees with functional loss due to pain which limited his plantar flexion. The Veteran's left ankle ROM was normal. The Veteran was noted as having no pain on examination, pain on weight bearing, tenderness, and no crepitus. The Veteran's ROM was unchanged with repetitive use and with repetitive use over time, but was found to have functional loss due to pain, lack of endurance, and fatigue. For flare ups the examiner found the Veteran's statements were neither medically consistent or inconsistent as to his functional loss, caused by pain, lack of endurance, and fatigue. His flare up ROM was described as plantar flexion and dorsiflexion each at 15 degrees. Additional factors contributing to his disability were noted as less movement than normal, interference with standing, and pain with movement and flare ups. The examiner found normal muscle strength, no muscle atrophy, and made no opinion as to ankylosis. The examiner noted right ankle instability and found laxity compared to the left ankle with both the anterior drawer test and talar tilt test. The examiner noted the Veteran's regular use of an ankle brace and no finding of arthritis. The examiner found a functional impact of limiting prolonged weight bearing such as running or hiking occasionally. The Board finds the VA examination to be competent, credible, and with significant probative weight. Pursuant to the Board remand of January 2019 the VA examination of April 2016 was found to be outdated as to the severity of the Veteran's right ankle as there was a September 2016 x-ray noted right ankle arthritis. The Veteran received another VA examination for his right ankle in December 2019 that noted his right ankle sprain with instability and post arthroscopic surgery. The Veteran reported current symptoms of pain and swelling if he stood too long, walked too much, and indicated he could no longer go on hikes, run around with his children, or walk around the mall. The Veteran reported his flare ups occurred when he stood or walked too long, with moderate severity, lasting four to five days. The Veteran's ROM was measured as plantar flexion at 45 degrees and dorsiflexion at 20 degrees, with no pain, no tenderness, and no crepitus. The examiner found with repetitive use, repetitive use over time, and flare ups were all found to have no additional loss of ROM and no functional limitation. The examiner noted normal muscle strength, no muscle atrophy, no ankylosis, no instability, no use of assistive devices, no arthritis, and no functional impact. The Board finds the VA examination is competent, credible, and with some probative weight. The Board finds it suspect that the Veteran's VA examination of 2016 and the VA examination of December 2019 contradict each other, and the December 2019 examination failed to consider the Veteran's right ankle arthritis. The Board's remand of August 2021 found the April 2016 and December 2019 VA examinations to be inconsistent and the Veteran had reported an increased in pain and additional limitations. A new VA examination was provided in September 2021. Prior to September 21, 2021, the Board finds the Veteran's right ankle disability picture more closely resembled a 10 percent disability rating. The Veteran's right ankle did not meet the next higher rating of 20 percent disabling. Prior to September 21, 2021, the Veteran's right ankle disability does not manifest as less than 5 degrees of dorsiflexion or less than 10 degrees plantar flexion. See 38 C.F.R. § 4.71a DC 5271. The Board also notes the Veteran's finding of arthritis and in considering the DC 5003 the Veteran is also not entitled to a higher disability rating as the ratings for arthritis will not be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a DC 5003, Note 1. The Board notes under DC 5003, the Veteran is also not entitled to a 20 percent disability rating as there has been no x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a DC 5003. While the Veteran has reported pain, fatigue, and flare ups, there was no indication that his functional impairment was worse than that reported at his VA examinations prior to September 21, 2021. Further, any additional limitation that he experienced due to pain, weakness, fatigability, lack of endurance, or incoordination was further considered by the Board. 38 C.F.R. § 4.40, 4.45. The evidence of record is in favor of finding against the Veteran's claim for an evaluation in excess of 10 percent for his right ankle disability prior to September 21, 2021. While the Board is sympathetic to the Veteran's report of symptoms, the medical evidence does not support a higher evaluation for his right ankle disability. The Board also finds that a staged rating is not appropriate for the Veteran's right ankle disability prior to September 21, 2021. The Board acknowledges the Veteran's competence to describe the severity of his symptoms. However, lay persons are not competent to consider complex medical questions to include assessments of the nature and severity of the symptoms for purposes of establishing an increased rating claim or render a complex medical opinion or diagnosis in the absence of proof of relevant training and expertise. Layno, 6 Vet. App. 465, 470; see also Jandreau, 492 F.3d 1372, 1377. As the record is absent of any showing that the Veteran has the medical training or credentials to make such a determination, the Board finds that the determination of the severity of symptoms of the Veteran's right knee to be outside the competence of the Veteran. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the competent and probative medical evidence of record. When the evidence persuasively favors one side or the other, here against the claims of the Veteran the claim will be denied on its merits. In this case the evidence is persuasively against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir., Dec. 17, 2021) (en banc). Accordingly, the criteria for a rating in excess of 10 percent for a right ankle disability prior to September 21, 2021, have not been met, and the claim is denied. Beginning September 21, 2021 The Veteran received an ankle VA examination in September 2021 noting his right ankle sprain with instability and post arthroscopic surgery. The Veteran reported increased pain with prolonged standing, swelling, pain, and aching that went up to the knee. The Veteran also noted increasing pain while standing on his toes, twisting sideways, and a constant ache. The Veteran noted he used a brace occasionally. The Veteran reported flare ups with a drastic increase in pain with any pressure or movement, lasting for more than two days, and with 4 episodes in the last year. The Veteran was noted as getting tired more easily, having to do more desk work, and having to seek assistance with tasks at work. The Veteran reported a history of instability and the feeling his ankle would snap sideways. The Veteran's right ankle active ROM measured plantar flexion at 25 degrees and dorsiflexion 10 degrees, with pain on active and passive motion, rest, weight bearing, and caused functional loss. The Veteran noted he had to break up work tasks such as inventory by sitting possible, and pain with walking and standing for more than 1 hour. His left ankle ROM was normal. After repetitive use the Veteran's ROM was not affected. However, after repeated use over time functional loss was found with pain and his plantar flexion measured at 20 degrees, and dorsiflexion at 5 degrees. The examiner noted the Veteran's flare ups with pain and concerns about instability, measured his ROM with plantar flexion at 15 degrees, and dorsiflexion at 5 degrees. The examiner noted swelling as a contributing factor of his disability, with no muscle atrophy, and no ankylosis. The examiner noted the Veteran's occasional use of a brace and x-rays noting minimal degenerative changes in his right tibiotalar joint. The examiner indicated a functional impact of the Veteran's right ankle with loss of up to a week of work in the last 12 months, having to sit when possible, doing more desk work, stopped high impact activities, avoiding stairs when possible, with at least three falls in a year, and adjusting his plans in anticipation of pain. The examiner provided an additional medical opinion that noted often severe symptoms enough to modify his daily behavior due to pain and anticipation of pain. The Veteran reported avoiding stairs and having issues with uneven surfaces with more increased risk of falls and injury. The examiner noted when the Veteran experienced flare ups, he had to avoid field work, needed help from co-workers, and lost the desire to do anything on his feet. He noted he was able to manage normally with a brace and over the counter medications, but with flare ups needed prescription medications. The Board finds the September 2021 VA examination is competent, credible, and with significant probative weight. The Veteran submitted statements noting he could no longer coach his son's sports, had to sit down regularly, and his ankle gave out regularly. He also described going up and down stairs caused his ankle to give way and caused him to stumble, and his ankle swelled if he played sports which became intolerably painful. While the Board acknowledges the Veteran's competence to describe the current severity of his symptoms, lay persons are not competent to consider complex medical questions to include assessments of the nature and severity of the symptoms for purposes of establishing an increased rating claim or render a complex medical opinion or diagnosis in the absence of proof of relevant training and expertise. Layno, 6 Vet. App. 465, 470; see also Jandreau, 492 F.3d 1372, 1377. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1372, 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the competent, probative medical evidence of record in determining the severity of the Veteran's right ankle instability. However, the Board notes that the Veteran's reports of increased pain and swelling along with flare ups causing additional functional loss coincides with the competent medical evidence of record. Further, any additional limitation that he experienced due to pain, weakness, fatigability, lack of endurance, or incoordination was accounted for and was further considered by the Board. 38 C.F.R. § 4.40, 4.45. The Board finds that as of September 21, 2021, the Veteran's right ankle disability manifested as a marked limitation of motion with less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. The Board notes the Veteran's ROM measurements in the September 2021 VA examination indicated a right ankle disability that met the 20 percent disability rating by finding a marked limitation of motion for the Veteran's right ankle disability in his ROM. This is the highest rating available for limitation of motion of the ankle. The Veteran asserted that he was entitled to extraschedular consideration for his right ankle disability. To accord justice in exceptional cases where the schedular standards are found to be inadequate, a RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson, 23 Vet. App. 423, 428-429. Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun, 22 Vet. App. 111. Based on a totality of circumstances, the Board finds the Veteran's right ankle disability does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. The Veteran reported pain, anticipation of pain, swelling, being slower at work, issues with sitting, standing, or walking for long periods, and having to stay off his ankle. The Board finds the regular schedular standards are appropriate for application in this instance for the right ankle disability. The Board finds that referral for consideration of an extraschedular rating is not warranted. See 38 C.F.R. § 3.321(b). When there is an approximate balance between positive and negative evidence, equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. But when the evidence persuasively favors one side or the other, for example in favor for the claims of the Veteran the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107 (2012); Gilbert, 1 Vet. App. 49); Lynch, No. 2020-2067, 2021 U.S. App. LEXIS 37307. Accordingly, the criteria for a 20 rating for a right ankle disability beginning September 21, 2021, have been met, and the claim is granted. Separate Rating for Right Ankle Instability The Veteran is entitled to a separate 10 percent disability rating as of January 25, 2016, for his right ankle instability. The Veteran's right ankle instability is rated by analogy under 38 C.F.R. § 4.71a DC 5257, applicable to knee instability. When an unlisted condition is encountered, as with ankle instability, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Prior to February 7, 2021, 38 C.F.R. § 4.71a DC 5257 governed instability and recurrent subluxation and for 10 percent disability rating required slight lateral instability or recurrent subluxation. A 20 percent rating required moderate lateral instability or recurrent subluxation. A 30 percent disability rating required severe lateral instability or recurrent subluxation. Id. The terms "slight," "moderate" and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to arrive at a just and equitable decision. 38 C.F.R. § 4.6. The use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. As of February 7, 2021, under DC 5257 (under the amended regulatory criteria) instability is broken into two categories, (1) recurrent subluxation or instability, and (2) patellar instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For (1), recurrent subluxation or instability due to sprains or ligament tears causing persistent instability, a 10 percent rating is warranted when there is no prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted when there is a medical provider who prescribes either a brace or an assistive device for ambulation and there is persistent instability from ligament tears or sprains. A 30 percent rating is warranted when there is a prescription from a medical provider for both an assistive device and bracing for ambulation. Id. For (2), patellar instability is defined as a diagnosed condition involving the patellofemoral complex with recurrent instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The patellofemoral complex for Code 5257 is defined as consisting of the quadriceps tendon, the patella, and the patellar tendon. A note clarifies that a surgical procedure that does not involve repair to at least one of the patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for this Code. Id. For patellar instability, a 10 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following a brace, cane, or walker. A 30 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, and either a cane or walker. Id. The Board further finds that the Diagnostic Code 5257 that governs recurrent patella subluxation and joint instability does not consider painful motion and therefore the Board finds that, as discussed above, the separate evaluation for painful motion, already addressed in this case, is not considered pyramiding or overlapping in symptomatology. 38 C.F.R. § 4.14. The Veteran's April 2016 VA examination found laxity of the Veteran's right ankle compared to his left ankle. The examiner noted a regular use of a brace for the Veteran's right ankle. The Veteran reported sometimes his leg gave out. In the VA examination provided in December 2019 the Veteran commented on his pain and swelling but described no issues with his ankle giving out and the examiner found no instability. In the September 2021 VA examination the Veteran noted his right ankle felt like it would snap sideways. He also described his concerns of instability and anticipation of pain during flare ups and was a continuing on-going issue. The Veteran reported he had at least three falls per year and 5 to 10 near falls per month. The examiner noted he occasionally used a brace for his ankle. Additionally, the examiner noted his right ankle was worse on uneven ground and he avoided stairs as there was an increased risk of falls or injury. The Board finds the VA examinations competent, credible, and with significant probative weight. In consideration of the Veteran's right ankle disability during the appeal period, his VA examinations, and reports and statements of instability the Board finds that his right ankle instability manifested as slight which meets a 10 percent disability rating. The Veteran reported consistently that he had ankle instability but in reviewing his statements the Veteran reported more consistently that pain and swelling caused him more functional loss and concern. Additionally, the Veteran reported he fell three times in his September 2021 VA examination but did not indicate if that was due to pain or instability. If the Board considers all of the falls in 2021 to be due to instability this would still be considered slight instability. The Board also finds that in consideration of the February 7, 2021, regulatory changes the Board's finding of a 10 percent disability rating for the Veteran's right ankle disability would not change. The 10 percent disability rating, after the regulatory changes, requires a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. During the appeal period the Veteran received no prescription for an assistive device from a medical provider for ambulation for his right ankle disability. The Veteran's right ankle disability prior to and after the regulatory changes would remain at a 10 percent disability rating. The Veteran also does not meet the 20 percent disability rating prior to the February 7, 2021, regulatory changes as his instability during the appeal period did not manifest to a moderate degree as he did not consistently report falling or his ankle giving out regularly, nor using his brace consistently. The Board also finds that a 20 percent disability rating under the post February 7, 2021, regulatory changes is also not warranted as the Veteran does not have recurrent subluxation or instability with a medical provider who prescribes either a brace or an assistive device for ambulation and there is no persistent instability from ligament tears or sprains. Additionally, the Veteran does not have patellar instability at a 20 percent rating as he does not have a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following a brace, cane, or walker. The Board also finds that a staged rating for the Veteran's right ankle instability is not appropriate. When there is an approximate balance between positive and negative evidence, equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. But when the evidence persuasively favors one side or the other, for example in favor for the claims of the Veteran the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107 (2012); Gilbert, 1 Vet. App. 49; Lynch, No. 2020-2067, 2021 U.S. App. LEXIS 37307. (Continued on the next page) Accordingly, the criteria for a separate 10 percent rating for right ankle instability beginning January 25, 2016, have not been met, and the claim is granted. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, Associate 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.