Citation Nr: 22019014 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 14-00 340 DATE: March 31, 2022 ORDER Restoration of a 20 percent rating for residuals of a right ankle injury, to include degenerative changes, as of July 1, 2010, is granted, subject to the laws and regulations governing the payment of monetary awards. A rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative changes, is denied. FINDINGS OF FACT 1. At the time of the reduction of the rating assigned for the Veteran's residuals of a right ankle injury, to include degenerative changes, in the April 2010 rating decision, there was insufficient evidence showing sustained and material improvement in such disability that was reasonably certain to be maintained under ordinary conditions of life and work. 2. For the entire appeal period, the Veteran's residuals of a right ankle injury, to include degenerative changes, is manifested by marked limitation of motion, without ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent rating as of July 1, 2010, for residuals of a right ankle injury, to include degenerative changes, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code (DC) 5003-5271. 2. The criteria for a rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative changes, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, DC 5003-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1990 to July 1992. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision issued in April 2010 by a Department of Veterans Affairs (VA) Regional Office. In July 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In February 2018, December 2019, and September 2021, the Board remanded the case for additional development and it now returns for further appellate review. The Board notes that additional evidence, to include updated VA and private treatment records and unrelated VA examination reports, was associated with the record since the issuance of the November 2021 supplemental statement of the case. However, as such are irrelevant or contain findings duplicative to those previously considered by the Agency of Original Jurisdiction (AOJ), the Board finds that no prejudice results to the Veteran in the Board proceeding with a decision at the present time. 38 C.F.R. § 20.1305(c). Entitlement to a rating in excess of 10 percent for residuals of a right ankle injury, to include degenerative changes, to include the propriety of the reduction from 20 percent to 10 percent, effective July 1, 2010. By way of background, the Veteran filed a claim for an increased rating of his service-connected right ankle disability in March 2008. He was afforded a VA examination in May 2008. In a July 2008 rating decision, the Agency of Original Jurisdiction (AOJ) continued the Veteran's 20 percent rating, noting that, although recent evidence showed some improvement in the right ankle disability, sustained improvement had not been definitively established. The AOJ further informed the Veteran that the 20 percent evaluation was continued pending a review examination, which was subsequently conducted in November 2009. In a December 2009 rating decision, the AOJ proposed to reduce the evaluation of the Veteran's service-connected right ankle disability from 20 percent to 10 percent. In this regard, the AOJ found that, based on the most recent VA examination, the Veteran's right ankle disability had shown sustained improvement. Subsequently, the AOJ decreased the evaluation for the Veteran's right ankle disability from 20 percent to 10 percent, effective July 1, 2010, in the April 2010 rating decision. The Veteran subsequently appealed with respect to the propriety of the currently assigned 10 percent rating, as well as the propriety of the reduction from 20 percent to 10 percent as of July 1, 2010, for his right ankle disability. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 27980 (1992). Reduction VA regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The veteran will be notified of the proposed reduction, as well as the fact that he has 60 days to present evidence showing why the reduction should not be implemented and may request a hearing. 38 C.F.R. § 3.105(e). The Board observes that the AOJ complied with § 3.105(e) in that the Veteran was informed of the proposed action in the December 2009 rating decision and was advised of the opportunity to present additional evidence within a 60-day period as well as his right to request a personal hearing. Thereafter, the reduction was effectuated in the April 2010 rating decision, which reduced the rating assigned for his residuals of a right ankle injury from 20 percent to 10 percent, effective July 1, 2010. Thus, the Board finds that the notice requirements of 38 C.F.R. § 3.105(e) have been met. The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the 20 percent rating was in effect from February 13, 1996, to July 1, 2010. As the rating was in effect for more than five years, the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations apply. 38 C.F.R. § 3.344(c). In this regard, 38 C.F.R. § 3.344(a) holds that rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with VA regulations. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. The Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 42021; 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, supra. The Veteran's right ankle disability is evaluated under the criteria of DC 5003-5271. 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. Here, the Board notes that the substance of DC 5003 was not changed, and the amendments made to DC 5271 may not be considered in determining whether the reduction of the rating for the Veteran's right ankle disability from 20 percent to 10 percent, effective July 1, 2010, was proper as such must be based on the version of the rating criteria then in effect. Pursuant to DC 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or minor joints affected by limitation of motion. 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, X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. A 20 percent rating requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71A. For the purpose of rating disability from arthritis, the ankle is considered a major joint. 38 C.F.R. § 4.45. DC 5271 provides a 10 percent rating for moderate limited motion of the ankle and a 20 percent rating for marked limited motion of the ankle. 38 C.F.R. § 4.71A. The normal range of motion in the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Plate II. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the U.S. Court of Appeals for Veterans Claims held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Historically, in a November 2000 rating decision, service connection for the Veteran's right ankle disability was granted with a 10 percent rating, effective February 13, 1996. In March 2001, the Veteran filed a notice of disagreement with respect to the evaluation of such disability. In a December 2002 statement of the case, the AOJ increased the rating for his right ankle disability to 20 percent, effective February 13, 1996, based on evidence of symptomatic manifestations that more nearly approximated a marked disability. Specifically, an August 2002 VA examination reflected range of motion to 20 degrees of dorsiflexion and 45 degrees of plantar flexion, as well as chronic sprain, usage of an ankle brace, a job that involved prolonged periods of standing, instability, and the notion that surgical intervention was needed. As noted previously, the Veteran thereafter filed a claim for an increased rating of his service-connected right ankle disability in March 2008. He was afforded a VA examination in May 2008. At such time, the Veteran complained of pain, weakness, stiffness, swelling, and giving way. Physical examination showed no signs of swelling, tenderness, weakness, deformity, or guarding of movement; posture and gait were within normal limits; there was no signs of abnormal weightbearing or unusual shoe wear pattern; and he did not require the use of any assistive devices for ambulation. Range of motion was to 20 degrees of dorsiflexion and to 45 degrees of plantar flexion. The examiner noted that right joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. As indicated previously, in a July 2008 rating decision, the AOJ continued the Veteran's 20 percent rating, noting that, although recent evidence showed some improvement in the right ankle disability, sustained improvement had not been definitively established. The AOJ further informed the Veteran that the 20 percent evaluation was continued pending a review examination. Subsequently, the Veteran underwent a review VA examination in November 2009 and, in the April 2010 rating decision, the AOJ decreased the Veteran's right ankle disability rating to 10 percent, effective July 1, 2010, based primarily on the results of such examination. Specifically, during the November 2009 VA examination, the Veteran demonstrated dorsiflexion to 15 degrees and plantar flexion to 45 degrees, with no additional limitation of motion following three repetitions. Physical examination revealed that the Veteran's posture was normal and he walked with a normal gait; there were no signs of edema, instability, movement, effusion, weakness, redness, heat, deformity, malalignment, or drainage; and there was no subluxation or ankylosis. X-rays of the right ankle showed normal findings. However, such report also shows that the Veteran reported experiencing flare-ups, and had difficulty with prolonged standing/walking. He further reported symptoms of weakness, stiffness, swelling, heat, giving way, lack of endurance, fatigability, tenderness, pain, and dislocation. Additionally, the examiner noted that the Veteran required a right ankle brace for ambulation; there was tenderness and guarding of movement on physical examination; and his right ankle was additionally limited by pain, fatigue, and lack of endurance after repetitive use. The examiner further noted that the Veteran's right ankle disability impacted his ability to work as a field engineer as such required him to check towers and walk on rough terrain, which aggravated his ankle and caused repeated trauma worsening his condition. Further, in a December 2009 letter written by Dr. B.C., a private treatment provider, it was noted that the Veteran had been his patient since September 2000 and, since such time, the Veteran frequently sprained his right ankle; had difficulty walking, especially on uneven ground; and had been seen multiple times for ankle pain. Additionally, Dr. B.C. reported that he suspected the Veteran's right ankle injury did not heal completely in the beginning, which formed a weaker ankle and caused frequent recurrences of the Veteran's injury. In a January 2010 written statement, the Veteran reported that he was told by specialists that he did not have any ligament in his right ankle, which was why he continuously sprained it. He further reported that he experiences continuous right ankle pain; is only able to perform limited athletic activities if he wears an ankle brace; has trouble standing for long periods of time; and had an abnormal gait. Moreover, a March 2010 letter written by Dr. J.S., another private treatment provider, notes that the Veteran reported repeated right ankle sprains and buckling. Physical examination revealed that the Veteran's right ankle had significant varus inversion instability and there was a positive anterior drawer test. An impression of chronic right ankle instability was noted, and Dr. J.S. indicated that the Veteran would benefit from a lateral ligament reconstruction of his right ankle. Based on the foregoing, the Board finds the reduction in the rating for the Veteran's right ankle disability from 20 percent to 10 percent, effective July 1, 2010, was improper. In this regard, the Board observes that such reduction was based upon a determination that the May 2008 and November 2009 VA examinations demonstrated improvement in such disability as the Veteran only had slight limitation of motion due to pain. However, the Board finds the evidence does not show actual improvement in the impact of the veteran's right ankle disability on his ability to function under ordinarily conditions of life and work. Specifically, in comparing the August 2002, May 2008, and November 2009 VA examination reports, such shows that the Veteran's right ankle dorsiflexion actually worsened. Additionally, the Veteran consistently reported experiencing pain and weakness/instability in his right ankle, to include during the aforementioned VA examinations and in his January 2010 written statement. Here, while the November 2009 VA examiner indicated that there were no signs of instability, such examination report reflects that the Veteran used a brace for ambulation and, in his January 2010 written statement, the Veteran noted that he used an ankle brace. Further, Dr. B.C. noted that he suspected the Veteran's right ankle injury did not heal completely in the beginning, which formed a weaker ankle, and physical examination by Dr. J.S. revealed that the Veteran's right ankle had significant varus inversion instability and there was a positive anterior drawer test. He further noted an impression of chronic right ankle instability and indicated that the Veteran would benefit from a lateral ligament reconstruction of his right ankle. Moreover, the November 2009 VA examiner found that the Veteran's right ankle disability caused functional limitations in regard to standing and walking, and he was additionally limited by pain, fatigue, and lack of endurance after repetitive use. Further, at the time of the November 2009 VA examination, the Veteran endorsed flare-ups. Similarly, Dr. B.C. determined that the Veteran had difficulty walking, especially on uneven ground. The November 2009 VA examiner further found that such disability impacted the Veteran's ability to work due to checking towers and walking on rough terrain. Notably, in comparing the symptoms reported by the Veteran in 2009 and 2010 with those taken into consideration in the December 2002 statement of the case which awarded the 20 percent rating, the Board finds no substantial difference. Therefore, the Board finds that, at the time of the reduction in the April 2010 rating decision, there was insufficient evidence showing sustained and material improvement in the Veteran's right ankle disability that was reasonably certain to be maintained under ordinary conditions of life and work. Accordingly, the reduction of the Veteran's right ankle disability was improper, and restoration of the 20 percent rating is warranted effective July 1, 2010. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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. As noted previously, 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). However, the substance of DC 5003, which was articulated in the previous section, was not changed. In this regard, as of February 7, 2021, DC 5271 provides for a 10 percent rating for moderate limited motion, defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and a 20 percent rating for marked limited motion of the ankle, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Notably, the amendment to DC 5271 was intended as a clarification of current policy and not a substantive change to the rating criteria. The Board observes that, for the entire appeal period, the Veteran is now in receipt of a 20 percent rating, the schedular maximum, under DC 5271 for his right ankle disability. In this case, the only applicable DC that provides for a rating in excess of 20 percent is DC 5270, which pertains to ankylosis of the ankle. Here, however, the evidence does not demonstrate any findings of ankylosis, to include the functional equivalent thereof, at any time during the appeal period. Rather, the pertinent medical evidence shows the Veteran has had the ability to move his right ankle throughout the appeal period. In this regard, in addition to the May 2008 and November 2009 VA examinations (articulated in the previous section), VA examinations dated in May 2013, November 2016, August 2018, January 2019, and January 2020 reflect that the examiners found that the Veteran did not have ankylosis, or the functional equivalent thereof, of the right ankle. As a result, a higher rating under DC 5270 is not warranted for the Veteran's right ankle disability. Additionally, as there is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy, higher or separate ratings under DCs 5272, 5273, or 5274 are not warranted at any time during the appeal period. In adjudicating the increased rating claim herein, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Conclusion In reaching the foregoing determinations, the Board has considered the applicability of the benefit of the doubt doctrine, which has resulted in the restoration of the Veteran's 20 percent rating for his residuals of a right ankle injury, to include degenerative changes, as of July 1, 2010. However, insofar as the Board has denied higher or separate ratings for such disability, the evidence of record persuasively weighs against such aspects of the Veteran's claim. Thus, the benefit of the doubt doctrine is not applicable in such regard and his claims must otherwise be denied. 38 U.S.C. § 5107, 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.