Citation Nr: 1754219
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 10-36 052 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1. Entitlement to a disability rating in excess of 20 percent for a left ankle sprain with degenerative changes.

2. Entitlement to a disability rating in excess of 20 percent for right ankle degenerative arthritis.

REPRESENTATION

Appellant represented by: California Department of Veterans Affairs

ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from October 1971 to October 1975.

This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Jurisdiction over this case was subsequently transferred to the RO in St. Petersburg, Florida and that office forwarded the appeal to the Board.

In May 2017, the Board remanded the appeal to afford the Veteran a Travel Board hearing at the RO. Although notified by October 2017 letter of his upcoming hearing, in October 2017, the Veteran notified VA that he wished to withdraw his prior request for a hearing. Therefore, as there is no other indication that the Veteran still desires a hearing, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(e) (2017).

The appeal is once again before the Board.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant’s case should take into account the existence of these electronic records.

FINDINGS OF FACT

1. The preponderance of the evidence shows that the left ankle has not been manifested by ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astralgus, or astragalectomy.

2. The preponderance of the evidence shows that the right ankle has not been manifested by ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astralgus, or astragalectomy.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for left ankle sprain with degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5271 (2017).

2. The criteria for a rating in excess of 20 percent for right ankle degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5271.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In April 2008, VA notified the Veteran of the information and evidence needed to substantiate his claims, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. To the extent the most recent examination does not fully comply with the factors outlined in Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that 38 C.F.R. § 4.59 requires that an adequate VA examination of the joints must include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing); Southall-Norman v. McDonald, No. 15-1357, 2016 WL 7240720, at 3-4 (Vet. App. Dec. 15, 2016) (the plain language of § 4.59 indicates that it is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements but may be applicable to the evaluation of musculoskeletal disabilities without range of motion measurements), because the Veteran’s ankle ratings during the period on appeal are the highest ratings possible for limitation of motion, the factors addressed in Correia are not applicable. The next higher rating would not depend upon range of motion measurements, as it requires ankylosis of the ankle joint, and there is no way to go back in time and assess these factors. Thus, a remand on this basis would be of no benefit to the Veteran. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remand is unnecessary where it “would result in this Court’s unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the veteran.”). Finally, as noted above, in May 2017, the Board remanded the appeal to afford the Veteran a hearing but he subsequently withdrew such request. Accordingly, that there has been substantial compliance with the prior remand directive. Stegall v. West, 11 Vet. App. 268 (1998).

Legal Principles and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2016). The Rating 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. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

Both of the Veteran’s ankle disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010- 5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). The hyphenated diagnostic code in this case indicates that traumatic arthritis under Diagnostic Code 5010 is the service-connected disability and that limited motion of the ankle under Diagnostic Code 5271 is the residual disability.

Diagnostic Code 5271 provides for a maximum schedular rating of 20 percent for marked limitation of motion. As the Veteran is receiving the maximum schedular rating under this diagnostic code for each of his ankles, a higher rating is not possible and further discussion in this regard is unnecessary. The Board, however, has a duty to acknowledge and consider all regulations that are potentially applicable. The only higher ratings available under the diagnostic codes applicable to the ankle are the 30 and 40 percent ratings under Diagnostic Code 5270 for ankylosis of the ankle. There are also 20 percent ratings warranted for ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, and astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2017). In this case, the preponderance of the evidence reflects that the Veteran does not have these or analogous symptoms.

In this regard, ankylosis has been defined as “immobility and consolidation of a joint.” Augustine v. Principi, 18 Vet. App. 505, 506, 508 (2004) (indicating that this definition was used by both parties in their briefs in that case). Normal ankle dorsiflexion is 0 to 20 degrees and normal ankle plantar flexion is 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. All four VA examinations during the period on appeal, in April 2007, May 2008, October 2010, and April 2016, revealed that the Veteran had at least some range of motion in plantarflexion and dorsiflexion in both ankles and the April 2016 examiner specifically noted that there was no ankylosis, malunion or astragalectomy. In this regard, in April 2007, the left ankle exhibited 10 degrees of dorsiflexion and 20 degrees of plantarflexion in both active and passive range of motion and the right ankle exhibited 10 degrees of dorsiflexion and 15 degrees of plantarflexion in both active and passive range of motion; the examiner estimated that DeLuca factors resulted in an additional 5 degrees of limitation of motion in dorsiflexion. In May 2008, the left ankle exhibited -10 degrees of dorsiflexion and 20 degrees of plantarflexion, without additional loss of motion due to pain on repetition; the right ankle exhibited dorsiflexion to zero degrees and 20 degrees of plantarflexion without additional loss of motion due to pain on repetition. In October 2010, both ankles exhibited 10 degrees of dorsiflexion and 30 degrees of plantarflexion, without additional loss of motion due to pain on repetition and the examiner commented that he did not expect significant loss of range of motion of the ankles under conditions of normal use. In April 2016, the left ankle exhibited 15 degrees of dorsiflexion and 35 degrees of plantarflexion, without additional loss of motion due to pain on repetition; the right ankle exhibited 15 degrees of dorsiflexion and 40 degrees of plantarflexion without additional loss of motion due to pain on repetition. Treatment records appearing throughout the appeal period support the above findings. A July 2007 VA treatment record notes that although ankle range of motion was decreased, it was painfree and the joints came to neutral; a March 2009 VA treatment record shows that there was no pain or limitation of the ankle joints with range of motion; a November 2009 VA treatment record shows range of motion in the ankles, albeit “decreased”; an August 2010 VA podiatry note shows normal ankle joint range of motion; an October 2010 VA treatment record shows full range of motion in all joints; and a March 2015 VA treatment record shows dorsiflexion to zero but 20 degrees of plantarflexion bilaterally. In sum, during the period on appeal, neither joint can reasonably be considered to have been “immobile” or “consolidated.”

The Board acknowledges that the May 2008 VA examiner noted a diagnosis of chronic left ankle sprain with degenerative changes, status post-surgical repair “with moderate ankylosis.” However, given that the examiner there also found at that examination that the Veteran’s left ankle exhibited -10 degrees of dorsiflexion and 20 degrees of plantarflexion, such an assessment appears inconsistent with both the findings at the examination, as well as the findings discussed above. While there is no question that the above-cited evidence shows that the Veteran has experienced significant and constant pain in both ankles, he has been able to move both ankles throughout the appeal period, and his symptoms therefore do not approximate ankylosis. While the Board generally must consider the extent to which a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59, where, as here, the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, DeLuca and the cited regulations are not for application. See Johnston, 10 Vet. App. at 85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis).

For the foregoing reasons, the preponderance of the evidence is against the claims for ratings in excess of 20 percent for left and right ankle disabilities. The benefit of the doubt doctrine is therefore not for application and the claims must be denied. 38 U.S.C.A. § 5107(b).

(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to a disability rating in excess of 20 percent for a left ankle sprain with degenerative changes is denied.

Entitlement to a disability rating in excess of 20 percent for right ankle degenerative arthritis is denied.

____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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