Citation Nr: 22018145 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-09 649 DATE: March 28, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for limitation of motion of the right ankle is denied. Entitlement to a separate disability rating for arthropathy of the right ankle is granted. FINDINGS OF FACT 1. The Veteran's right ankle disability is manifested by a moderate limitation of motion, with dorsiflexion to 10 degrees and plantar flexion to 30 degrees during a flare-up. 2. The Veteran's right ankle arthropathy is characterized by numbness, muscled weakness, and paresthesias not attributable to neuropathy and not contemplated in the rating criteria for limitation of motion of the ankle. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for limitation of motion of the right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for entitlement to a separate disability rating for arthropathy of the right ankle have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from November 2009 to March 2013, to include in the Republic of Iraq. This matter was previously before the Board in September 2018, when it was remanded for additional records and VA examinations. Such examinations were obtained on remand in October 2019, July 2020, and September 2020. The Board deemed these examinations adequate for rating purposes and the Veteran has not challenged their findings nor has the Court found them to be inadequate. This matter then came before the Board in February 2021, wherein the Board denied entitlement to a disability rating in excess of 10 percent for right ankle disability. The Veteran then appealed this decision to the Court of Appeals for Veterans Claims (Court) which, in November 2021 granted a Joint Motion for Remand (JMR). The JMR determined that inadequate reasons and bases had been provided for the denial of increased rating and for failure to consider entitlement to a separate disability rating for symptoms of arthropathy. The matter was returned to the Board for action in compliance with the Court's instructions. Entitlement to a disability rating in excess of 10 percent for limitation of motion of the right ankle The Veteran sustained an injury to his right ankle in service which resulted in a torn ligament, tendinopathy, and tendinosis, along with functional limitations of motion. Service connection was granted in a rating decision issued in September 2012 and a 10 percent disability rating was assigned based on a finding that the limitation of motion was moderate in nature. The Veteran seeks a higher disability rating, based on difficulty walking without a cane and shooting pain when he walks. The Veteran's right ankle has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, 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. When considering the rating criteria prior to February 7, 2021, the Board notes that the dictionary defines "moderate" as "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. The most recent VA examination in July 2020 listed the Veteran's right ankle disability as including torn talofibular ligament, mild peroneus longus tendinopathy, and mild tendinosis. (See C&P Exam, 07/08/2020.) The Veteran reported experiencing pain flare-ups in the right ankle once a week, which were severe and lasted for 2 to 3 days and were precipitated by walking. He reported having difficulty with prolonged standing or walking. Range of motion testing showed dorsiflexion to 15 degrees (out of 20 degrees) and plantar flexion to 35 degrees (out of 45 degrees). It was noted that the Veteran had pain on all ranges of motion, pain with weight-bearing and non-weight-bearing tests, and pain with both active and passive range of motion testing. The Veteran also had moderate pain in the medial and lateral ankle with palpation. The examiner provided an estimate of the Veteran's functional limitations resulting from repetitive motion or during a flare-up, specifically dorsiflexion to 10 degrees (out of 20 degrees) and plantar flexion to 30 degrees (out of 45 degrees). The examiner noted that the Veteran had no demonstrated instability of the ankle but was precluded from standing or walking more than 4 hours out of an 8-hour shift, which would limit his ability to perform physical labor. Under the pre-February 7, 2021, rating criteria, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for right ankle disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain flare-ups or repetitive motion motion. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the VA examiner's estimates specifically, 10 degrees of dorsiflexion and 30 degrees of plantar flexion the limitation of motion does not more nearly approximate marked limited motion. The Board notes that even considering the limitation of motion estimated during a pain flare-up, dorsiflexion is still 50 percent or one-half of the maximum, and plantar flexion is 65 percent or two-thirds of the maximum. Both one half and two-thirds as remaining limitation of motion are more consistent with a moderate disability picture than with a marked disability picture. Under the new rating criteria effective February 7, 2021, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for right ankle disability. This finding is based on the measurement of dorsiflexion to 10 degrees and plantar flexion to 30 degrees, even when considering the additional limitation of motion resulting from a pain flare-up or repetitive use. Thus, these measurements did not meet the criteria corresponding to a higher 20 percent rating. The Board has considered whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability rating. In this case, however, as discussed below, the Veteran has argued persuasively that a separate disability rating for those symptoms not contemplated by the rating criteria based on limitation of motion would be more appropriate. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 10 percent for right ankle disability. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Entitlement to a separate disability rating for arthropathy of the right ankle The JMR noted that the Board had failed to consider whether a separate disability rating was warranted for the Veteran's symptoms of arthropathy of the right ankle. The Board notes that evaluation of a disability under the rating criteria is governed by the listed symptoms and manifestations; the same symptoms or manifestations may not be rated under more than one Diagnostic Code. 38 C.F.R. § 4.14. The Veteran's right ankle disability is rated above based on limitation of motion and painful motion using Diagnostic Code 5271. 38 C.F.R. § 4.71A. These symptoms are the focus of the rating criteria and no other symptoms or manifestations are listed. Criteria to be considered when evaluating musculoskeletal disabilities based on limitation of motion, include functional loss caused by pain or other aspects of flare-ups or repetitive use, and weakened movement, excess fatigability, or incoordination. See 38 C.F.R. § 4.40 and § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). As these are considered part of an evaluation for musculoskeletal disability, they may not be used as the basis for assigning a separate disability rating. 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."). In this instance, the Veteran has reported and demonstrated on examination some additional symptoms of right ankle disability, including constant pain (not just on motion), paresthesias, numbness, and decreased muscle strength. The September 2020 VA examination report ascribes these symptoms to traumatic right ankle arthropathy rather than to a nerve disability such as peripheral neuropathy. (See C&P Exam, 09/04/2020.) These symptoms are usually rated either under the criteria for nerve injuries or those for muscle injuries. See 38 C.F.R. § 4.73 and 38 C.F.R. § 4.124A. It is noted that service connection for nerve damage of the right leg was denied by the Board in the decision issued in February 2021 and was not disputed in the appeal filed with the Court. Nevertheless, consideration may be given to the symptoms in the Veteran's right ankle which are ascribed to arthropathy. As these symptoms are not contemplated by the currently assigned disability rating, the Board finds that a separate disability rating is warranted. The Board is not authorized to assign initial disability once service connection is allowed; that is the purview of the AOJ. The Board notes that the granting of entitlement to a separate disability rating does not signify that a compensable disability rating must be assigned. Rather, the AOJ will assign the disability rating using the most closely analogous Diagnostic Code and the rating criteria may provide for either a compensable or noncompensable disability rating. Even assigment of a noncompensable disability rating, however, is a favorable finding in that it allows a path for increased rating should the symptoms worsen. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.