Citation Nr: 23052084 Decision Date: 09/21/23 Archive Date: 09/21/23 DOCKET NO. 20-08 795 DATE: September 21, 2023 ORDER Entitlement to an initial 20 percent rating for left ankle status post bone fracture, open reduction and internal fixation (ORIF), and hardware removal with lateral collateral ligament sprain and arthritis is granted. FINDING OF FACT The Veteran's left ankle symptoms approximate marked limitation of motion when considering his chronic severe ankle pain, with and without weight bearing, tenderness, swelling, and crepitus, as well as functional impairment significantly limited due to pain, fatigue, weakness, and lack of endurance, without ankylosis or malunion/nonunion of the tibia/fibula. CONCLUSION OF LAW The criteria for an initial 20 percent rating for left ankle status post bone fracture, ORIF, and hardware removal with lateral collateral ligament sprain and arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2014 to May 2018. In May 2023, the Veteran testified at a virtual Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge. 1. Entitlement to an initial 20 percent rating for left ankle status post bone fracture, ORIF, and hardware removal with lateral collateral ligament sprain and arthritis. The Veteran contends that he is entitled to a higher rating, claiming that his left ankle disability has worsened since the March 2018 VA examination. See March 2023 Hearing Transcript. The Veteran's left ankle status post bone fracture, ORIF, and hardware removal with lateral collateral ligament sprain and arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5010-5271, for limitation of motion of the ankle. 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. If a law or regulation changes during the course of a claim or an appeal, the version more favorable will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the amended 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. DC 5010 directs that arthritis due to trauma that is substantiated by x-ray findings be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. Pursuant to DC 5003, degenerative arthritis substantiated by x-ray findings is rated based on limitation of motion under the appropriate DC for the specific joint or joints involved. 38 C.F.R. § 4.71a. DC 5003. Except for the title of the rating, the evaluation of the criteria did not change effective February 7, 2021. Under DC 5271, prior to February 7, 2021, a 10 percent rating was warranted for moderate limited motion of the ankle. A maximum 20 percent rating was warranted for marked limited motion of the ankle. Under DC 5271, effective from February 7, 2021, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A maximum 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) At the March 2018 VA examination, the Veteran reported left ankle flare-ups with prolonged standing and walking. Left ankle motion was to 5 degrees on dorsiflexion and 35 degrees on plantar flexion, with pain on motion that disturbed standing, ambulating, and squatting. Examination revealed left ankle pain on weight bearing and non-weight bearing. No additional limitation of left ankle motion was shown following repetitive-use testing. The examiner stated that pain, fatigue, weakness, and lack of endurance, significantly limited the Veteran's functional ability with repeated use over time and on flare-ups, which impacted his ability to stand, walk, squat, push, and pull. No ankle joint instability was shown. At the May 2023 VA examination, the Veteran reported that his left ankle condition had progressively worsened. Left ankle range of motion was demonstrated to 15 degrees on plantar flexion and to 5 degrees on dorsiflexion, with pain on motion and on weight-bearing. The Veteran denied flare-ups. The examiner stated that the Veteran's left ankle condition has progressively gotten worse, and that despite physical therapy, insoles, knee brace, ankle brace, stretches, topical Diclofenac, Ibuprofen and Tylenol, the Veteran continues to have chronic sharp radiating pain (7/10), especially around the talus part of the ankle, and arthritis issues which impact the Veteran's daily activities and job because he cannot walk long distances and stand for extended periods of time. The examiner opined that the Veteran's left ankle pain significantly limited his functional ability with repeated use over a period of time, due to pain, weakness, and fatigability, but stated that after repeated use his range of motion would be the same, with 15 degrees on plantar flexion and 5 degrees on dorsiflexion. Joint stability testing showed no left ankle instability. The Veteran regularly used an ankle brace. The examiner opined that the Veteran's left ankle disability would impact his ability to perform any type of occupational task. The examiner stated that passive range of motion testing was medically contraindicated as it may cause the Veteran severe pain or the risk of further injury. After reviewing the record, and resolving reasonable doubt in favor of the Veteran, the Board finds that a 20 percent rating is warranted for the service-connected left ankle disability. In that regard, his left ankle disability has been manifested by chronic pain, on weight bearing and non-weight bearing, as well as tenderness on palpation, crepitus, and swelling. He regularly wore an ankle brace. Examination showed that at worst, dorsiflexion was limited to 5 degrees and plantar flexion was limited to 15 degrees, with pain at the end ranges. Additionally, however, the functional impairment due to the Veteran's left ankle disability was assessed significantly limited due to pain, fatigue, weakness, and lack of endurance, on flare-ups and with repeated use, and has been described as limiting and interfering with the Veteran's ability to stand, walk, squat, push, and pull. The Board therefore finds that the Veteran's overall disability picture for the service-connected left ankle disability more closely approximate the criteria for a 20 percent rating for marked limitation of motion under DC 5271. 38 C.F.R. §§ 4.7, 4.40, 4.45. With regard to an even higher rating, as Veteran is now in receipt of the highest schedular rating for limited motion of the ankle, there is no basis to award a higher rating for his left ankle disability. The Board has considered whether any other diagnostic codes related to the ankle would provide for a higher disability rating but finds that a rating in excess of 20 percent is not warranted under other applicable diagnostic codes, as no ankylosis or malunion/nonunion of the left tibia/fibula has been shown. 38 C.F.R. § 4.71a, DCs 5262, 5270. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Casula, Denise 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.