Citation Nr: 22018449 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-37 614 DATE: March 29, 2022 ORDER An initial rating in excess of 10 percent prior for service-connected right ankle degenerative joint disease (right ankle disability) is denied. An initial rating of 30 percent, but no higher, on and after June 7, 2017, for service-connected left ankle degenerative joint disease (left ankle disability) is granted. FINDINGS OF FACT 1. The Veteran's service-connected right ankle disability is manifested by no more than moderate limited motion of the ankle, even when considering additional functional loss due to repetitive use over time. 2. The Veteran's service-connected left ankle disability more nearly approximates severe foot injury due to marked ankle limited motion when considering additional functional loss due to repetitive use over time, a foot fracture and stabilization surgery, instability, and tenderness. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the service-connected right ankle disability 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 a rating of 30 percent, but no higher, for service-connected left ankle disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The issues on appeal have been remanded in December 2019, March 2021, and October 2021. In December 2019, the Board directed the RO to attempt to obtain private records, obtain VA treatment records, and obtain a current ankle examination. See Remand BVA or CAVC (December 2019). Additional VA records were added in December 2019 and January 2022. See CAPRI (December 2019); CAPRI (January 2022). Requests for authorizations for private records were sent in December 2019 and February 2020. See Subsequent Development Letter (December 2019); Subsequent Development Letter (February 2020). Authorizations were submitted in February 2020 for three doctors, Dr. B, Dr. S, and Dr. A. See VA 21-4142 Authorization for Release of Information (February 2020). These records were obtained. See Medical Treatment Record Non-Government Facility (February 2020). A February 2020 VA examination was also provided. See C&P Exam (February 2020). In March 2021, the Board requested that retrospective addendum opinions be obtained. See BVA Decision (March 2021). In October 2021, the Board again requested addendum retrospective opinions regarding weightbearing, non-weightbearing position, and active and passive motions, noting that the prior opinions were inadequate. See BVA Decision (October 2021). In January 2022 opinions, a VA clinician determined that no estimates regarding weightbearing, non-weightbearing, active and passive range of motion for 2013 and 2016 VA examinations could be provided. See C&P Exam (January 2022). The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The clinician opined that it required mere speculation to provide these retrospective range of motion measurements, noting that the Veteran himself could not recall, the clinician was not the original examiner, and the available objective evidence did not provide sufficient information to make such an estimation without speculation. See C&P Exam (January 2022). The Board finds that there is substantial compliance as the examiner provided a supporting explanation for their determination, to include that review of the prior VA examinations did not include sufficient objective evidence to provide estimates. Accordingly, the Board may proceed to adjudicate the issues on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Here, that date is February 2012. The Veteran's right and left ankle disabilities are 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 maximum 20 percent rating is warranted for marked limited motion of the ankle. According to MERRIAM WEBSTER, "moderate" means "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. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. See Schedule for Rating Disabilities, Musculoskeletal System and Muscle Injuries, 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.) 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2021). 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 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 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). 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." Correia v. McDonald, 28 Vet. App. 158 (2016). 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. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Entitlement to a rating in excess of 10 percent for the service-connected right ankle disability. The Veteran contends he is entitled to an increased evaluation as he has right ankle instability and pain. See Hearing Transcript (September 2019). The Board finds that the most persuasive evidence of record demonstrates that the service-connected right ankle disability more nearly approximates moderate, but not marked, limitation of motion. See 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 3.102, 4.3, 4.7, 4.71a Diagnostic Code 5271. 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 a right ankle disability. Initially, although the 2013 and 2017 VA examinations did not address passive versus active range of motion, and resolving all doubt in favor of the Veteran, the Board assumes the passive range of motion is as limited as active range of motion. Similarly, the 2013 VA examination noted no pain in plantar flexion, pain at the end range of dorsiflexion, and no pain on palpation. The Board will presume, however, there was pain on both weight-bearing and non-weight-bearing. Regarding the 2017 VA examination, the examiner found no pain on range of motion but pain on weight-bearing, and pain on palpation of the lateral side of the right ankle. Thus, again, the Board will presume there is pain throughout the range of motion and on non-weight-bearing. Objective findings show dorsiflexion was limited to 5 degrees in 2013, 10 degrees in 2017, 15 degrees in 2020 due to repetitive use over time, 15 degrees in 2021, due to repetitive use over time, and 10 degrees in 2022, due to repetitive use over time. See VA Examination (August 2013); C&P Exam (June 2017); C&P Exam (February 2020); C&P Exam (June 2021); C&P Exam (January 2022). Plantar flexion was limited to 30 degrees at its worst, due to repetitive use over time. See C&P Exam (June 2021); C&P Exam (January 2022). These findings more nearly approximate moderate, not marked, limitation of motion, because plantar flexion remained at 2/3 of full range of motion, and other than the 2013 finding, dorsiflexion was at least 50 percent of full range of motion. The Board acknowledges the Veteran's lay reports of symptoms such as pain, laxity, and resulting limits on standing and walking. See CAPRI (January 2022); CAPRI (July 2018); CAPRI (September 2013). Examiners found that pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time. But the examinations also showed full strength and the Veteran denied flare-ups. See VA Examination (August 2013); C&P Exam (June 2017); C&P Exam (February 2020). However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements is contemplated by the reduced range of motion findings as noted above. This is because the limitation of motion reflects functional limitations due to repetitive use over time. Thus, the additional functional limitation is already considered within the 10 percent evaluation. Under the new rating criteria, effective February 7, 2021, an increased evaluation is also not warranted. The evidence of record persuasively weighs against a rating in excess of 10 percent for a right ankle disability because dorsiflexion always measured 10 or more degrees and plantar flexion always measured 30 or more degrees, even when considering additional functional loss after repetitive use over time. See C&P Exam (June 2021); C&P Exam (January 2022). Thus, these measurements did not meet the criteria corresponding to a higher 20 percent rating. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, excess fatigability, incoordination, repetitive use, and pain during repetitive use over time, etc. See C&P Exam (June 2021); C&P Exam (January 2022). However even considering the Veteran's lay reports of symptoms and functional loss demonstrated in VA examinations, those symptoms and additional functional impairment are already considered in the range of motion findings. The Board has also considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Here, each VA examiner noted there was no ankle ankylosis, no ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, and astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2020); 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2021); see also C&P Exam (August 2013); C&P Exam (June 2017); C&P Exam (February 2020); C&P Exam (June 2021); C&P Exam (January 2022). Additionally, no higher or separate evaluation is warranted for right ankle arthritis at any point during the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Degenerative arthritis 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. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct 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, arthritis is rated for involvement of 2 or more major or minor joints/joint groups. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Here, there is compensable limitation of motion, which is rated under limitation of motion. No higher or separate evaluation is thus warranted. The Veteran's representative asserted that the Veteran is entitled to an extraschedular evaluation for the right ankle. See Medical Treatment Record Non-Government Facility (March 2017). No specific symptom is noted to constitute an exceptional disability picture. See Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran's reports of pain and limitation of motion with functional loss are considered by the relevant diagnostic code, the Veteran has not alleged specific symptoms or other functional impairment that are not contemplated by the rating criteria, and the evidence of record does not appear to show marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. 111. Accordingly, no referral for extraschedular consideration is warranted. In conclusion, the Board finds that the evidence of record is against the Veteran's appeal for a rating in excess of 10 percent for the service-connected 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). 2. Entitlement to a rating in excess of 10 percent since June 7, 2017, for service-connected left ankle disability. The Veteran contends he is entitled to an increased evaluation as he has left ankle instability and pain. See Hearing Transcript (September 2019). He has reported he walks on the lateral side of his left foot to compensate for instability. See C&P Exam (June 2021). The Board finds that an evaluation of 30 percent is warranted on and after June 7, 2017, as the most persuasive evidence of record more nearly approximates marked limitation of motion of the left ankle due to repetitive use over time, with additional symptoms of instability and tenderness. See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5284. Under the pre-February 7, 2021, rating criteria, the Board finds that the evidence of record persuasively weighs in favor of a 20 percent rating for the left ankle disability. Objective findings at the 2020, 2021, and 2022 VA examinations showed dorsiflexion limited to five degrees, based on estimates of additional functional loss due to repetitive use over time. See C&P Exam (February 2020); C&P Exam (June 2021); C&P Exam (January 2022). At the June 2017 VA examination, the examiner found there was 10 degrees of dorsiflexion; but did not provide any estimates or other findings related to additional limitation of motion upon repetitive use or repetitive use over time. See C&P Exam (June 2017). Although the Board attempted to obtain such estimates, none were provided. See C&P Exam (August 2021); C&P Exam (September 2021); C&P Exam (January 2022). Thus, and resolving all doubt in favor of the Veteran, the Board presumes that if such an estimate had been provided, it would have aligned with the estimates given by three other examiners during the appeal period. For the entire appeal period, therefore, the Veteran's left ankle dorsiflexion was five degrees out of a full 20 degrees. The Board finds that this more nearly approximates marked limitation of motion, as it represents a 75 percent reduction in range of motion. Thus, a 20 percent evaluation is assigned on and after June 7, 2017. This is the maximum evaluation provided for under this Diagnostic Code and under the new rating criteria effective February 7, 2021. Accordingly, no higher evaluation would be warranted. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher or separate rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Here, each VA examiner noted there was no ankle ankylosis, no ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2020); 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2021). Furthermore, an evaluation in excess of 20 percent is not available for arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Thus, a 20 percent evaluation would be the highest evaluation warranted. The Veteran's left ankle disability, however, produces other symptoms and disabilities. Objective evidence shows that a left foot Jones fracture is caused by the Veteran's service-connected left ankle disability. See C&P Exam (June 2017); C&P Exam (January 2022). Surgery on that ankle, which included internal fixation, was conducted in 2015. See C&P Exam (February 2020); C&P Exam (June 2021); Medical Treatment Record Non-Government Facility (August 2015). In VA treatment records, the Veteran reported significant pain. See CAPRI (January 2022); CAPRI (July 2018). The Veteran has also reported wearing a brace on his left ankle and walking on the lateral side of his left foot to compensate for instability. See C&P Exam (June 2021); C&P Exam (January 2022); Hearing Transcript (2019). Additionally, instability was objectively demonstrated due to positive anterior drawer and talar tilt tests showing an absence of firm end point with asymmetric or excessive motion. See C&P Exam (June 2021); C&P Exam (January 2022). The Veteran has also testified that he limps, has an abnormal gait, and rolls or sprains his ankle which further limits mobility. See Hearing Transcript (September 2019); C&P Exam (February 2020); C&P Exam (June 2021); CAPRI (December 2019). VA and private examiners noted tenderness of the entire left ankle. See C&P Exam (June 2017); C&P Exam (June 2021); C&P Exam (January 2022); Medical Treatment Record Non-Government Facility (September 2019). The bulk of these symptoms are not considered within the 20 percent evaluation for left ankle limitation of motion and would, therefore, remain unaddressed and potentially require extraschedular evaluation. The Veteran's abnormal gait is part and parcel of the increased evaluation for limitation of motion, as part of what reduces his range of motion to 5 degrees of dorsiflexion is repetitive use over time, which would include walking. However, "extraschedular consideration is appropriate only after the agency has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings." Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (citing Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019)). As the foot fracture and other symptoms have been determined to be caused by the service-connected ankle disability, the Board will consider the assignment of an appropriate foot diagnostic code. The assignment of a particular Diagnostic Code 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, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Here, the Board finds that Diagnostic Code 5284, for other foot injuries, is more appropriate as the ankle diagnostic codes do not take into account instability, tenderness, and ankle rolling or sprains; rather, they are only rated on limitation of motion, deformity, and particular surgeries. See 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274. Although the Veteran's representative asserts the ankle should be evaluated under the diagnostic code for knee instability, the Board finds that the foot diagnostic codes are more applicable. See Medical Treatment Record Non-Government Facility (March 2017). Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate foot injuries. A 20 percent rating is warranted for moderately severe foot injuries. A 30 percent rating is warranted for severe foot injuries. With actual loss of use of the foot rate, a maximum 40 percent may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree". See www.merriam-webster.com/dictionary/severe. Here, the Board finds that the Veteran's foot and ankle disability, which includes significant limitation of motion due to functional loss from pain with repetitive use over time, instability, abnormal gait, rolling of the ankle, and tenderness, more nearly approximates a severe foot disability; a 30 percent evaluation is thus warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. As the Veteran is still able to ambulate, there is not actual loss of use of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. Furthermore, the Board has considered whether a separate evaluation based on ankle limitation of motion and other foot injuries is for assignment but finds that it is not. based on other foot injuries is not for assignment here because that would require evidence of moderate foot injury. The Board finds that the Veteran's symptoms of tenderness and instability do not more nearly approximate moderate or moderately severe injuries. Accordingly, no separate evaluation is warranted. The Board has also considered the other Diagnostic Codes pertaining to the foot. But there is no plantar fasciitis, flatfoot, bilateral weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammertoes, or malunion or nonunion of the tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5277, 5278, 5279, 5280, 5281, 5282, 5283 (2020); 38 C.F.R. § 4.71a, Diagnostic Code 5269, 5276-5283 (2021). Thus, no higher or separate evaluations are for assignment under the diagnostic codes applicable to the feet. In conclusion, the Board finds that the evidence of record persuasively weighs in favor of the assignment of a 30 percent, but no higher, evaluation for the Veteran's left ankle disability. As the change of Diagnostic Code here is favorable to the Veteran, and comports with his desire for a higher rating to encompass the function impairment of his disorder without resorting to extraschedular consideration, the Board finds no prejudice to the Veteran in the change of Diagnostic Code. Also, as the evidence of record persuasively weighs against a rating in excess of 30 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). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.