ANKLE IMPAIRMENT OF

JAMES A. DEFRANK · 2025 · Case ID: 25007861

GRANTED

Summary

The veteran, who served from December 1975 to June 1977, appeals for increased disability ratings for his service-connected left and right ankle conditions. The Board reviewed the case, noting the veteran's prior 10 percent ratings for each ankle and the procedural history, including a previous remand for further examination regarding functional loss due to flare-ups and repeated use. The Board considered both prior and current rating criteria for musculoskeletal disorders, emphasizing functional loss due to pain, weakness, and limitation of motion. The veteran reported constant dull aching pain, sharp stabbing pain with prolonged weight-bearing, ankles giving way, and use of a walker and wheelchair. VA examinations noted pain, crepitus, and decreased range of motion, particularly with repeated use, but also noted the veteran denied flare-ups and that the ankles were not ankylosed. The Board found the veteran's reports of pain and functional loss highly probative, particularly the constant dull aching and sharp stabbing pain, which they determined most nearly approximated marked limitation of motion. Applying the benefit of the doubt and considering the veteran's competent and credible reports, the Board found that the symptoms warranted a 20 percent rating for each ankle, aligning with marked limitation of motion under the relevant regulations. However, the Board denied higher ratings, as ankylosis was not demonstrated, and the symptoms did not meet the criteria for higher evaluations under alternative diagnostic codes.

Rationale

Veteran reported constant dull aching pain and sharp stabbing pain with prolonged weight-bearing, standing, and walking.; VA examinations noted decreased range of motion, pain on motion, weakness, and fatigability causing functional loss.; Board found symptoms most nearly approximated marked limitation of motion, warranting 20% rating.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5271

Docket No.

17-17 938

Full Decision Text

Citation Nr: 25007861
Decision Date: 06/12/25 Archive Date: 06/12/25

DOCKET NO. 17-17 938
DATE: June 12, 2025

ORDER

Entitlement to a disability rating of 20 percent for a left ankle disability is granted.

Entitlement to a disability rating of 20 percent for a right ankle disability is granted.

FINDING OF FACT

The Veteran's right and left ankle symptoms more nearly approximate the criteria for marked limited motion.

CONCLUSIONS OF LAW

1. The criteria for a disability rating of 20 percent, but no higher, for left ankle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

2. The criteria for a disability rating of 20 percent, but no higher, for right ankle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from December 1975 to June 1977.

These matters are before the Board of Veteran's Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified during a February 2020 Board hearing before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of those proceedings is of record.

The procedural history of this case is detailed in prior Board decisions issued in April 2020, January 2021, and January 2025.

The January 2025, decision was remanded for an examination to determine functional loss due to flare-ups and repeated use over time. This matter comes again before the Board.

Increased Ratings

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.

The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38?U.S.C. §?1155; 38?C.F.R. §§?3.321(a), 4.1.

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown,?6 Vet. App. 259, 262?(1994).?

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38?C.F.R. §?4.7.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

When there is an approximate
1999). This practice is known as staged ratings. Id.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38?U.S.C. §?5107(b); 38?C.F.R. §?4.3.

When evaluating musculoskeletal disabilities, if the diagnostic code does not reference medication, then the beneficial medication effects must be discounted when assigning an evaluation or when adjudicating entitlement to increased ratings. Ingram v. Collins, 38 Vet. App. 130 (2025).

In other words, if the diagnostic criteria do not explicitly contemplate medication use, the Board must discount any beneficial effects of medication use when adjudicating entitlement to increased ratings. See also McCarroll v. McDonald, 28 Vet. App. 267 (2016).

Ankle

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. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected body part. Under 38?C.F.R. §?4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38?C.F.R. §?4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

A veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, including as due to pain. 38?C.F.R. §?4.40 (2020); see Lyles v. Shulkin,?29?Vet. App.?107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38?C.F.R. §?4.45. However, a veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86?(Fed. Cir. 2016).

Under 38?C.F.R. §?4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald,?28?Vet. App.?158, 168?(2016).

Where functional loss is alleged due to pain upon motion, the provisions of?38?C.F.R. §?4.40?and § 4.45 must be considered. DeLuca v. Brown,?8?Vet. App.?202, 207-08?(1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown,?10?Vet. App.?80, 85?(1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and
?Vet. App.?158, 168?(2016).

In Sharp v. Shulkin,?29?Vet. App.?26?(2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.

Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. 38?C.F.R. §?4.71a. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327?(Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the revised regulations beginning February 7, 2021, applying the most favorable criteria for the Veteran.

Under the regulations in effect prior to February 7, 2021, DC 5271 pertains to limitation of motion of the ankle. A 10 percent evaluation is warranted for moderate limitation of motion. A 20 percent evaluation is warranted for marked limitation of motion. The words "moderate" and "marked" are not defined in the VA rating schedule. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked.

For VA compensation purposes, normal range of motion for the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38?C.F.R. §?4.71, Plate II. Ankylosis is the complete immobility of a joint in a fixed position. Dinsay v. Brown, 9?Vet. App.?79, 81 (1996) (indicating that ankylosis is complete immobility of the joint in a fixed position).

Under the regulations in effect since February 7, 2021, Diagnostic Code 5271 provides that a 10 percent disability rating is assigned for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 percent disability rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion).

DC 5272 pertains ot ankylosis of subastragalar or tarsal joint, DC 5273 pertains to malunion of os calcis or astragalus, and DC 5274 pertains to astragalectomy.

Analysis

The Veteran is service
the regulations in effect since February 7, 2021, Diagnostic Code 5271 provides that a 10 percent disability rating is assigned for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 percent disability rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion).

DC 5272 pertains ot ankylosis of subastragalar or tarsal joint, DC 5273 pertains to malunion of os calcis or astragalus, and DC 5274 pertains to astragalectomy.

Analysis

The Veteran is service connected for his left and right ankle at 10 percent disabling from October 9, 2009. The Veteran's left and right ankle are currently rated under DC 5271, for limitation of the ankle. The Veteran contends his service-connected left and right ankle warrant a higher disability rating.

The Veteran filed a claim for an increased rating that was received by VA in March 2015.

A December 2015 private evaluation mentioned instability in both ankles that caused falls.

VA medical records from June 2019 show that he went to the emergency room when his right ankle gave out and he fell down some stairs.

In the history section of the July 2020 Disability Benefits Questionnaire (DBQ) the examiner noted the Veteran's report that his "ankle was unstable, weak." Without addressing this relevant evidence, the July 2020 examiner checked boxes on the DBQ stating that ankle instability or dislocation was not suspected and did not perform any stability testing.

The Veteran was afforded a VA examination for Ankle Conditions in March 2021. Despite the Board's remand instructions, the examiner indicated that the Veteran did not report or have a history of instability of the ankle.

During the Veteran's April 2021 VA examination for Knee and Lower Leg Conditions, the Veteran advised the clinician that he wears ankle braces. He reported that his ankles and feet flare up with pain deep inside which intensifies with walking, sitting, standing or other daily activities. He also stated that his ankles give way without notice.

The Veteran was afforded another VA examination for Ankle Conditions in January 2024. He was diagnosed with left ankle strain. Neither a diagnosis nor an examination was given for his right ankle. The examiner indicated that the Veteran's right ankle could not be tested because it is damaged, but did not provide estimates for the ranges of motion pertaining to that ankle. Despite the Veteran reporting flare-ups during his March 2021 VA examination for Ankle Conditions and April 2021 VA examination for Knee and Lower Leg Conditions, the examiner indicated that the Veteran did not report flare-ups.

Per the Board's January 2025 remand instructions, the Veteran underwent a VA examination in January 2025. At that examination the examiner found the Veteran had left and right ankle strain. The Veteran reported he has ankle pain that is sharp at times. He hears popping and has a small spasm sensation. On a good day the pain is a 7/10 and on a bad day it is a 9/10. The Veteran reported current symptoms of a constant, dull aching pain in both ankles. He reports a sharp stabbing pain with any prolonged weight bearing, standing, or walking. He has pain with going up and down stairs. He uses a walker due to his pain for any walking beyond the inside of his house. He uses an electric wheelchair whenever it is available (such as a grocery store). He treats his bilateral ankles with physical therapy, ice, heat, bengay ointment, Voltaren ointment, morphine (emergency room visit), oxycodone, baclofen, electrical stimulation, and massage. The Veteran reported functional loss or impairment of his ankles.

The Veteran's initial range of motion (ROM) for the left ankle was 30 of 45 degrees for plantar flexion and 10 of 20 degrees for dorsiflexion. The initial ROM for the right ankle was the same. The Veteran had pain on both plantar flexion and dorsiflexion. The examiner found evidence of pain on weight-bearing, active motion, on rest/ non-movement, non weight-bearing, passive motion, and it results in functional loss. There was objective evidence of crepitus and localized tenderness or pain on palpation for both the left and right ankle. There was no additional loss of function or ROM for either the left or right ankle for observed repetitive use ROM. The examiner found the ROM for repeated use over time for the left ankle was 25 of 45 degrees for plantar flexion and 5 of 20 degrees
lexion. The initial ROM for the right ankle was the same. The Veteran had pain on both plantar flexion and dorsiflexion. The examiner found evidence of pain on weight-bearing, active motion, on rest/ non-movement, non weight-bearing, passive motion, and it results in functional loss. There was objective evidence of crepitus and localized tenderness or pain on palpation for both the left and right ankle. There was no additional loss of function or ROM for either the left or right ankle for observed repetitive use ROM. The examiner found the ROM for repeated use over time for the left ankle was 25 of 45 degrees for plantar flexion and 5 of 20 degrees dorsiflexion. The right ankle ROM for repeated use over time for the right ankle was 25 of 45 degrees for plantar flexion and 10 of 20 degrees dorsiflexion. Both ankles had pain, weakness, and fatigability that caused functional loss. The ROM for left and right ankle was consistent with the ROM for repeated use over time. The examiner stated that the Veteran denies flare-ups.

The examiner found there were the following additional factors that contributed to the left and right ankle disability: interference with standing (constant dull aching pain), disturbance of locomotion (sharp stabbing pain with any prolonged weight bear, standing, walking), less movement than normal (decreased range of motion due to pain), and weakened movement (decreased strength due to pain). The examiner found the Veteran did not have muscle atrophy. There was no ankylosis of the ankle and no ankylosis of the subastragalar or tarsal joint. There was no absence of firm end point with asymmetric or excessive motion (anterior drawer test) and there was no asymmetric or excessive motion (Talar Tilt Test). The Veteran did not have shin splints. The Veteran has not had surgeries. The Veteran reported use of a walker and wheelchair for assistive devises. The examiner did not find that there was functional impairment of an extremity such that no effective function remains other than that which would be equally served by an amputation with prosthesis.

Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that a 20 percent rating for right and left ankle disabilities is warranted.

As mentioned above, "moderate" and "marked" are not defined by the Code under the old rating criteria while the new rating criteria (for the period since February 7, 2021), defines marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.

Again, "marked" is defined as "noticeable; obvious; appreciable; distinct; conspicuous." See Webster's New World Dictionary, Third College Edition (1988) at 828. "Moderate" is defined as "of average or medium quality, amount, scope, range, etc." Id. at 871.

The Board finds the Veteran's symptoms identified by the January 2025 VA examiner to be highly probative. Specifically, "constant dull aching pain in bilateral ankles, sharp stabbing pain with any prolonged weight bearing, standing, walking." See January 2025, C&P exam. The symptoms demonstrate a functional loss caused by the Veteran's left and right ankle that most nearly approximates marked limitation. DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. at 38. The symptoms are consistent with the record, the lay statements of the Veteran, and his use of medication and treatment. Ingram, 38 Vet. App.

In light of the Veteran's competent and credible reports of pain to which the Board has accorded significant probative value, and the fact that at a point during the appeal period the Veteran's right and left ankle plantar flexion was from 0 to 25 degrees during the January 2025 VA examination (compared to a normal range of 0 to 45 degrees) and his right dorsiflexion was from 0 to 5 degrees and his left dorsiflexion was from 0 to 10 degrees (compared to a normal range of 0 to 20 degrees), the Board affords the Veteran the benefit of the doubt and finds that his overall disability picture more nearly approximates the criteria for 20 percent ratings based on marked limitation of motion, when taking into account DeLuca factors.

Thus, the Board resolves reasonable doubt in the Veteran's favor and finds that the evidence of record shows that the Veteran's right and left ankle symptoms more nearly approximate the criteria for marked limited motion. Consequently, resolving reasonable doubt in
compared to a normal range of 0 to 45 degrees) and his right dorsiflexion was from 0 to 5 degrees and his left dorsiflexion was from 0 to 10 degrees (compared to a normal range of 0 to 20 degrees), the Board affords the Veteran the benefit of the doubt and finds that his overall disability picture more nearly approximates the criteria for 20 percent ratings based on marked limitation of motion, when taking into account DeLuca factors.

Thus, the Board resolves reasonable doubt in the Veteran's favor and finds that the evidence of record shows that the Veteran's right and left ankle symptoms more nearly approximate the criteria for marked limited motion. Consequently, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to evaluations of 20 percent, but no higher, for a right and left ankle disabilities are warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5271 (2021).

However, the Board does not find that ratings in excess of 20 percent are warranted for the Veteran's right and left ankle disabilities.

According to 38 C.F.R. § 4.71a, Diagnostic Code 5271, the maximum schedular evaluation available for limited motion of the ankle is a 20 percent evaluation. As noted, the Veteran's right and left ankle disabilities have been awarded this maximum 20 percent evaluation for the period under appeal.

The only diagnostic codes (Diagnostic Codes 5270 and 5272) for ankle disorders that offers a potentially higher rating than the Veteran's current 20 percent ratings is for ankylosis of the ankle. However, while VA examination reports indicate that the Veteran's right and left ankle ranges of motion are reduced, his ankles are not ankylosed as the Veteran's lay reports of symptoms and functional loss, as well as the evidence or record, do not demonstrate ankylosis or the functional equivalent of ankylosis. The Veteran did not make any reports of either ankle locking up or being unable to move it all due to pain, swelling, or other symptoms. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Veteran did not provide any evidence that the use of medication and treatments used for his left and right ankle didn't work or that they didn't provide any relief. Ingram, 38 Vet. App. There is no evidence of deformity. Additionally, the evidence of record does not show factually distinct periods where the left and right ankle disability symptoms would warrant different disability ratings, a staged rating is not warranted. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

The Board has also considered whether an increased or additional disability rating may be assigned for the Veteran's right and left ankle disabilities under alternative diagnostic codes pertaining to disability of the ankle.

Diagnostic Code 5273 pertains to malunion of os calcis or astragalus, which has not been shown at any time during the appeal. Finally, as there is no evidence that the Veteran's right or left talus bone has been removed, Diagnostic Code 5274 for astragalectomy is not applicable. Thus, the Veteran is not entitled to an increased or additional rating under Diagnostic Codes 5003, 5010, 5270, 5272, 5273, or 5274.

Again, the Board notes that a rating in excess of 20 percent requires ankylosis of the ankle. Such impairment was simply not documented as the Veteran did not have any type of ankylosis, including in consideration of functional loss due to pain on motion, weakness, and fatigability.

Since the Veteran's right and left ankle are not ankylosed as he has demonstrated the ability to flex, the criteria for an increased 30 percent evaluations have not been met. Thus, the Board finds that the current 20 percent evaluations adequately portray any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his right and left ankle disabilities.

As a result, the Board finds that 20 percent ratings, but no higher, are warranted for the Veteran's right and left ankle disabilities.

James A. DeFrank

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board H.E. Toole, 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

Analyze in VA Law Explorer