Citation Nr: A24014792
Decision Date: 03/27/24	Archive Date: 03/27/24

DOCKET NO. 191002-35619
DATE: March 27, 2024

ORDER

The reduction from a 10 percent disability rating to a noncompensable disability rating for service-connected right foot/ankle sprain was improper; a 10 percent disability rating is restored, effective January 1, 2019.

FINDING OF FACT

The rating reduction for the Veteran's right foot/ankle sprain from 10 percent to 0 percent effective January 1, 2019, was not sufficiently supported by the evidentiary record; sustained material improvement under ordinary conditions of life and work was not demonstrated.

CONCLUSION OF LAW

The criteria for restoration of a 10 percent rating for right foot/ankle sprain from January 1, 2019, are met. 38 U.S.C. § 1155; 38 C.F.R. § 3.105, 4.71a, Diagnostic Code (DC) 5271.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 2002 to November 2005. 

In October 2019, the Veteran timely appealed to the Board by rating decision by filing a Decision Review Request: Board Appeal (Notice of Disagreement (VA Form 10182) and requested a hearing before a Veterans Law Judge, which was conducted in February 2024. A transcript of the hearing is of record. 

In the VA Form 10182, the Veteran stated he was appealing a July 2019 rating decision, which increased the disability rating for right foot/ankle sprain from 0 percent to 10 percent, effective June 27, 2019. However, during the hearing, the Veteran made clear that she was in fact appealing the reduction that occurred as a result of an October 2018 rating decision, which decreased the evaluation of right foot/ankle sprain from 10 percent disabling to 0 percent disabling, effective January 1, 2019. 

Here, the October 2018 rating decision was issued under the legacy system, and the steps for election into the modernized review system were not performed. See 38 C.F.R. § 3.2400(a)(2). However, the Board ultimately accepted the Veteran's VA Form 10182, scheduled him for a hearing, and a Board member took testimony on that matter during a hearing. Percy v. Shinseki, 23 Vet. App. 37. Therefore, the Board will address the merits of the appeal.

Based on the Veteran's election, the Board may only consider the evidence of record at the time of the October 2018 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

Whether the reduction of the rating for right foot/ankle sprain disability from 10 percent to a noncompensable, effective January 1, 2019, was proper.

This appeal arises out of the Veteran's disagreement with a decision to reduce the rating assigned for her right foot/ankle sprain disability from 10 percent to noncompensable, effective January 1, 2019. A claim stemming from a rating reduction action is a claim as to whether the reduction was proper, not whether the veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992).

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). 

In the instant case, the Board finds that the AOJ complied with § 3.105(e) in that the Veteran was informed of the proposed action in a March 2018 rating decision and was advised of the opportunity to present additional evidence within a 60-day period, as well as her right to request a personal hearing. Thereafter, the reduction was effectuated in the October 2018 rating decision, which reduced the rating assigned for her right foot/ankle sprain disability from 10 percent to noncompensable, effective January 1, 2019. 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 applies 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 10 percent rating was in effect from January 5, 2017, to January 1, 2019. As the rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do not apply; rather, reexamination disclosing improvement will warrant a reduction. 38 C.F.R. § 3.344 (c).

Nevertheless, 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 420-21; 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 the 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 service-connected right foot/ankle sprain is evaluated pursuant to DC 5271, which was rated as 10 percent disabling as of January 5, 2017; however, it was reduced to 0 percent disabling as of January 1, 2019.

The Board notes that, 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. 

Prior to February 7, 2021, 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. 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 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 Court 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). 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 DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

By way of background, the Board observes that the AOJ awarded a 10 percent rating for the Veteran's right foot/ankle sprain disability as of January 5, 2017, in a June 2017 rating decision based on a May 2017 VA examinations. As reflected in the May 2017 VA examination related to the ankles, the Veteran reported intermittent pain with walking, she stated her right ankle was uncomfortable and worse during cold weather, and that she had a little bit of swelling with cold weather. Per the Veteran, the pain occurred approximately 7 to 8 times per year. 

Upon examination, the examiner noted normal right ankle range of motion. The examiner did note pain on examination with dorsiflexion, however stated that such did not result in or cause functional loss. Per the examiner, there was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. According to the examiner, the Veteran was able to perform 3 repetitions without any further reduction in her range of motion. Also, the Veteran was being examined after repeated use over time, and there was no additional loss of function or range of motion after repeated use over time. Further, per the examiner, the examination was not being conducted during a flareup, and the examiner was unable to state, without mere speculation, whether pain, weakness, fatigability or incoordination significantly limits functional ability with flareups. The examiner indicated that there were no additional factors contributing to right ankle disability, that muscle strength was normal, there was no right ankle ankylosis, and no right ankle muscle atrophy. Moreover, although right ankle instability was suspected, stability testing tests were normal. The examiner remarked that there was evidence of pain on passive range of motion testing, however no evidence of pain when the joint was used in non-weight bearing. The examiner also indicated that the Veteran's right ankle disability impacted her ability to work as prolonged standing or walking may aggravate the medial aspect of her right ankle.

Additionally, according to a May 2017 Foot Conditions, including Flatfoot (Pes Planus) DBQ, a VA examiner stated that there was pain with the Veteran's right foot upon examination, although the pain did not contribute to functional loss. The examiner indicated that there was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flareups or when the right foot was used repeatedly over time. Also, the examiner noted no other functional loss during flareups when the right foot was used repeatedly over a period of time.

In January 2018, the Veteran submitted an increased rating claim, in pertinent part, for her right foot/ankle sprain disability. However, based on February 2018 VA examination results, the AOJ proposed to reduce the rating for the Veteran's right foot/ankle sprain disability from 10 percent to noncompensable in a March 2018 rating decision. In this regard, the February 2018 VA examiner documented that the Veteran had a diagnosis of right ankle pain that was asymptomatic. Nonetheless, the Board notes that under medical history, the February 2018 examiner documented that although the examiner noted no current symptoms, the examiner also documented the Veteran's report of ongoing pain on that ankle joint during cold weather conditions, while wearing high heel shoes and climbing; in describing the course since onset, the examiner also noted that the condition has stayed the same. 

In an August 2019 statement, the Veteran noted that the rating for her right foot/ankle disability was increased to 10 percent, effective June 2019, however expressed disagreement with the rating reduction for her right ankle, effective January 1, 2019, to June 27, 2019. Likewise, in and October 2019 statement submitted along with her VA Form 10182, the Veteran expressed her belief that her right ankle disability never should have been reduced, and that she is entitled to a 10 percent rating from January 1, 2019, to June 27, 2019. 

At the February 2024 Board hearing, the Veteran testified that she has not noticed any improvement in the severity of her right ankle disability. In this regard, per the Veteran, when her rating for the right foot/ankle sprain disability was proposed to be reduced, she was experiencing a lot of pain in her right foot. The Veteran referenced her notes and described that she had been experiencing burning and tingling, fatigue, weakness, lack of endurance of her right foot and ankle, even when resting. As relevant, the Veteran described having a constant pins and needles sensation in her right foot and ankle, which was accompanied by severe burning. Per the Veteran, her right foot/ankle disability interfered with prolonged walking, standing and driving. She described having therapies [flareups] of her right foot, stating they were moderately severe and lasting about two hours. She specified that every time she walked, stood up or drove, it got worse, and stated that flareups are only alleviated by rest. The Veteran testified that she had constant, daily right foot/ankle pain that was excruciating. She stated that it hurt to push the pedal in her car, walk, run, and go up steps. The Veteran testified that she received arch support and a right ankle brace from VA. 

Moreover, in regard to the February 2018 examination, the Veteran testified that she disagreed with the VA examiner's findings that she was asymptomatic, and expressed that the February 2018 examiner was looking at multiple conditions and that the examination was conducted too quickly. 

Based on the foregoing, the Board finds that the evidence of record at the time of the October 2018 rating decision failed to demonstrate a sustained and material improvement in the Veteran's service-connected right foot/ankle sprain disability that was reasonably certain to be maintained under ordinary conditions of life and work. In this regard, the Veteran's February 2024 testimony and post-service treatment records demonstrate that the Veteran has continued to have right foot/ankle pain that interfered with prolonged standing and walking, running, jumping, and climbing/descending stairs.

In regard to the February 2018 examination, the Board notes that, under medical history, while the examiner noted no current symptoms, the examiner also documented the Veteran's report of ongoing pain on that ankle joint during cold weather conditions, while wearing high heel shoes, and climbing; the examiner also documented that the condition had reportedly stayed the same. Moreover, evidence received within the permissible evidentiary period, to include the Veteran's testimony, likewise reflects that she still experiences pain of the right foot/ankle that adversely impacts the ordinary conditions of life and work. 

Consequently, the Board finds that the evidence of record at the time of the October 2018 rating decision failed to demonstrate a sustained and material improvement in the Veteran's service-connected right foot/ankle sprain disability that was reasonably certain to be maintained under ordinary conditions of life and work. Accordingly, the reduction of the rating assigned for the Veteran's 

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right foot/ankle disability was improper, and restoration of the 10 percent rating is warranted, effective January 1, 2019.

 

 

A. Dean

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Spielmann, Jill F.

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.