Citation Nr: 25004792 Decision Date: 04/09/25 Archive Date: 04/09/25 DOCKET NO. 14-01 012 DATE: April 9, 2025 ORDER Entitlement to a rating in excess of 10 percent prior to May 19, 2021, for a left ankle disability is denied. FINDING OF FACT Prior to May 19, 2021, a left ankle disability was manifested by no more than moderate limitation of motion with no evidence of joint ankylosis or any other residual disability. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 10 percent, prior to May 19, 2021, for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA), which is the Agency of Original Jurisdiction (AOJ). This claim was previously remanded by the Board for additional development by the AOJ in June 2017 and August 2019. A January 2023 Board decision denied entitlement to an increased rating for a left ankle disability prior to May 19, 2021. A December 2023 Joint Motion for Remand before the United States Court of Appeals for Veterans Claims resulted in a Court Order which vacated the January 2023 Board decision with respect to that issue and remanded the matter to the Board for further action consistent with the Joint Motion. An April 2024 Board decision remanded the claim for further development. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). On a January 2014 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran requested a hearing. The hearing was conducted before the undersigned Veterans Law Judge in January 2017 and a hearing transcript is of record. 1. Entitlement to a rating in excess of 10 percent prior to May 19, 2021, for a left ankle disability. The Veteran asserts that entitlement to a rating in excess of 10 percent prior to May 19, 2021, for a left ankle disability is warranted. An April 2024 Board decision remanded the claim for additional VA examination. In April 2024 and May 2024, the AOJ scheduled the Veteran for a VA examination for the left ankle disability. On May 22, 2024, the Veteran cancelled the scheduled VA examination. On June 4, 2024, the AOJ contacted the Veteran and explained the importance of cooperating with the VA contractor, in verifying demographic information in preparation for attending an examination. The Veteran stated that she understood and would comply in the future. On December 9, 2024, the Veteran did not attend the rescheduled left ankle disability VA medical examination. On review of the record, there is no indication, either by the Veteran or the representative that an attempt has been made to reschedule or otherwise provide good cause for not attending the scheduled VA examination. In January 2025, the Veteran was contacted by the AOJ with respect to a separate January 2025 examination that the Veteran did not attend, and the Veteran explained that she did not want to drive to New Orleans. In this case, the Veteran's left ankle VA examination appointment was in Hattiesburg, Mississippi. Therefore, the Veteran did not provide good cause with respect to the missed May 2024 and December 2024 left ankle VA examinations. The May 2024 and December 2024 examination notification letters were sent to the Veteran's correct address and were not returned as undeliverable. There is no indication in the record that the letter notifying the Veteran of the need for an examination was not received. Ashley v. Derwinski, 2 Vet. App. 62 (1992) (presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (presumption of regularity to RO actions). Both the Veteran and his representative were informed in the December 2024 supplemental statement of the case that the Veteran had not attended two separate left ankle examinations. They were also provided the provisions of 38 C.F.R. § 3.655, which informed them of the ability to establish good cause for the failure to report for a VA examination. The Board finds no evidence of VA error in notifying or assisting the Veteran in connection with this claim. The Board notes that the duty to assist a claimant is not a one-way street, and the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran does not report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. The Board finds that there is no duty to attempt to provide another examination or medical opinion. Therefore, the Board will proceed to decide the claim based on the evidence of record. The VA treatment records show generally that the Veteran has been treated for pain of the left ankle. At a June 2011 VA examination, the Veteran stated that she had a constant, dull, aching pain in the left ankle. She rated the average daily pain as a five or six on a 0 (low) to 10 (high) pain scale. She experienced flare-ups one or two times weekly after walking on uneven ground. She stated that she was unable to walk more than one block due to foot, ankle, and knee pain. She was able to perform all activities of daily living. The Veteran had an altered gait with use of a straight cane and right knee brace. No swelling of the ankle was noted. Dorsal flexion was 0 to 10 degrees bilaterally. Plantar flexion was to 35 degrees on the left and to 40 degrees on the right. Eversion of the tarsal joint was to 20 degrees bilaterally. Inversion of the tarsal joint was to 30 degrees on the left and to 45 degrees on the right. There were no valgus or varus angulations noted. The Veteran showed slight facial grimacing with ankle joint movement with dorsiflexion and plantar flexion. There was no additional loss of range of motion after repetitive use testing. At a February 2012 VA examination, the Veteran reported experiencing flare-ups once or twice a week where the left ankle popped. She had to sit down and catch her breath after flare-ups. The examiner observed left ankle plantar flexion to 45 degrees or greater with no evidence of painful motion. Left ankle plantar dorsiflexion was to 20 degrees or greater with no objective evidence of painful motion. There was no additional loss of range of motion after repetitive use testing. The Veteran experienced lateral tenderness. The examiner stated that the Veteran's history was compatible with chronic lateral instability of the ankle with frequent episodes of popping during weight bearing. There was no ankylosis. At a November 2016 VA examination, the Veteran reported that the left ankle popped in and out. She could not stand for long periods of time, and she could not pedal a bicycle. She experienced flares of pain a couple of times a day. All ranges of motion for the right ankle were normal. Left ankle dorsiflexion was to 20 degrees, and plantar flexion was to 30 degrees. There was evidence of pain with weight bearing. Pain was noted on examination that did not cause functional loss. There was no additional loss of function or range of motion after repetitive use testing. There was no muscle atrophy or ankylosis. The Veteran had equal range of motion in passive and active motion. At a June 2018 VA examination, the examiner found that all range of motion measurements for the right ankle were normal. For the left ankle, dorsiflexion was to 20 degrees, and plantar flexion was to 45 degrees. No pain was observed on examination during range of motion testing. There was evidence of pain with weight bearing. There was no additional loss of function or range of motion after repetitive use testing. There was no muscle atrophy or ankylosis. The Joint Motion for Partial Remand agreed that the November 2016 and June 2018 VA examinations were not adequate with respect to the explanation of the basis on which they could not offer an opinion about whether there was any additional loss of range of motion on flare-ups. Therefore, the Board will not consider evidence of lack of flare-ups from the November 2016 and June 2018 VA medical examinations. Collectively, the evidence of record shows that prior to May 19, 2021, the left ankle disability was manifested by a relatively normal range of motion, and was described as such by the VA examiners of record. The level of limitation of motion shown did not meet the criteria for a higher rating, even with consideration of other functionally limiting factors, or on flare up. While the Veteran has asserted that the residuals included severe pain, the objective examination findings did not show that the level of severity caused by the pain resulted in limitation of motion that would warrant any higher rating for the left ankle. The Board finds that level of motion does not constitute marked limitation of ankle motion, as required for a higher 20 percent rating for the left ankle under the appropriate Diagnostic Code, or ankylosis as required for any higher rating. Even considering the objective evidence of swelling, tenderness, and painful motion in the left ankle, and functional loss due to increased pain and weakness during flare-ups associated with prolonged walking and standing, the current 10 percent rating for the left ankle accounts sufficiently for that symptomology. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011) The pain on motion, other limiting factors, and limitations during flareups have been considered in assigning the current 10 percent rating for the left ankle. Ankylosis of the left ankle is not shown. Accordingly, the Board finds that the weight of the evidence is against the assignment of any higher or additional, separate ratings for the left ankle disability. The Board finds that no rating higher than 10 percent or a separate rating is shown to be warranted under the diagnostic codes relating to disabilities of the ankle. The Board finds that the evidence is not in approximate balance and the criteria for a higher rating are not met or more nearly approximated. The Board finds that there is no reasonable doubt to resolve in favor of the Veteran, and the claim for an increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gernand, 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.