ANKLE IMPAIRMENT OF

Summary

The veteran, who served from September 1957 to July 1958, appeals the denial of an increased disability rating for his service-connected right ankle osteoarthritis. The original May 2020 decision granted service connection with a 10 percent rating, effective October 21, 2019. The veteran sought a higher rating, believing his condition warranted more than 10 percent. The Board reviewed the evidence, including a November 2019 VA examination, which found moderate limited motion of the right ankle (10 degrees dorsiflexion, 30 degrees plantar flexion) and pain with weight-bearing and repeated use. However, the examiner noted no ankylosis, muscle atrophy, instability, or dislocation, and no additional loss of range of motion after repetitive use testing. VA treatment records did not reflect symptoms more severe than those noted in the examination. The Board found the evidence persuasively against a rating higher than 10 percent, concluding that the veteran's condition did not demonstrate more than moderate limited motion or its functional equivalent. While acknowledging the veteran's subjective complaints of pain and functional loss, the Board found no additional functional impairment beyond what is contemplated by the 10 percent rating. The benefit of the doubt doctrine was considered but found inapplicable as the evidence weighed against the claim. Therefore, the appeal for an increased rating was denied.

Rationale

Evidence persuasively against rating higher than 10 percent.; No additional functional loss beyond moderate limited motion.; Pain noted, but no loss of range of motion or instability.

Full Decision Text

Citation Nr: A22004703
Decision Date: 03/17/22	Archive Date: 03/17/22

DOCKET NO. 220223-222847
DATE: March 17, 2022

ORDER

A disability rating in excess of 10 percent for right ankle osteoarthritis is denied.

FINDING OF FACT

The evidence of record is persuasively against finding that the Veteran's right ankle osteoarthritis has been productive of more than moderate limited motion of the ankle, or the functional equivalent thereof, at any point during the rating period on appeal.

CONCLUSION OF LAW

The criteria for an award of a disability rating in excess of 10 percent for right ankle osteoarthritis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1957 to July 1958.  

The original decision underlying the present appeal was issued in May 2020 by a Department of Veterans Affairs (VA) Regional Office (RO).  The RO granted service connection for right ankle osteoarthritis with an evaluation of 10 percent effective October 21, 2019.  In February 2021, the appellant requested Higher-Level Review of the May 2020 decision with respect to the evaluation assigned for the right ankle disability.  Following a denial on Higher-Level Review in February 2021, the appellant timely appealed to the Board of Veterans' Appeals (Board), requesting direct review of the evidence considered by the agency of original jurisdiction at the time of the May 202 decision.  See February 2022 VA Form 10182; 38 C.F.R. §§ 20.201, 20.202(b)(1).

A disability rating in excess of 10 percent for right ankle osteoarthritis is denied. 

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.  Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999)

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with
 disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011). 

Service connection for right ankle osteoarthritis was granted in a May 2020 rating decision, which assigned a 10 percent disability rating, effective October 21, 2019, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5271.  

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).  These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021.  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.  The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.  Any amendments specific to the diagnostic criteria used to evaluate the Veteran's disabilities will be discussed below.

Prior to February 7, 2021, Diagnostic Code 5003 provided that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 20 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  Under 38 C.F.R. § 4.59, painful motion is an important factor of disability from arthritis and actually painful joints are entitled to at least the minimum compensable rating for the joint.

Effective February 7, 2021, Diagnostic Code 5003 expressly excludes application to post-traumatic arthritis.  The rest of the rating criteria remained unchanged. 

Prior to February 7, 2021, Diagnostic Code 5271 provided the rating criteria for limited motion of the ankle.  Moderate limited motion merited the assignment of a 10 percent rating and marked limited motion merited the assignment of a 20 percent rating.  The Rating Schedule provides guidance by defining full range of motion of the ankle as 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion.  38 C.F.R. § 4.71a, Plate II.

The February 7, 2021, amendments clarified that under Diagnostic Code 5271, a moderate limitation of motion of the ankle was less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and a marked limitation of motion of the ankle was less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.

Upon review of the record,
 the assignment of a 20 percent rating.  The Rating Schedule provides guidance by defining full range of motion of the ankle as 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion.  38 C.F.R. § 4.71a, Plate II.

The February 7, 2021, amendments clarified that under Diagnostic Code 5271, a moderate limitation of motion of the ankle was less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and a marked limitation of motion of the ankle was less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.

Upon review of the record, the Board finds that the evidence of record is persuasively against the assignment of a disability rating in excess of 10 percent for right ankle osteoarthritis for any point during the period on appeal.  In this regard, the evidence of record is persuasively against finding that the Veteran's right ankle osteoarthritis has been productive of more than moderate limited motion of the ankle, or the functional equivalent thereof. 

The Veteran underwent a VA examination the right ankle in November 2019 VA examination.  He reported pain and swelling in his ankle, which limited his ability to perform activities of daily living, yardwork, or any activity that requires standing or walking.  The Veteran also reported daily flare-ups from walking short distances or standing for short periods of time.  Range of motion testing revealed right ankle dorsiflexion to 10 degrees and plantar flexion to 30 degrees.  There was no additional limitation of motion following repetitive use testing.  The examiner indicated that pain significantly limited functional loss with repeated use over time and with flare ups; however, there was no resulting loss of range of motion.  Additionally, the examiner noted that there was no ankylosis or muscle atrophy, and neither joint instability nor dislocation were suspected.  

VA treatment records during the period on appeal do not reflect symptoms more severe than those noted during the November 2019 VA examination.

Based on the foregoing, the Board finds that the evidence of record is persuasively against finding that the Veteran's right ankle osteoarthritis has been productive of more than moderate limited motion of the ankle.

Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected right ankle osteoarthritis.  The Board acknowledges the Veteran's subjective complaints including his report that he suffers from daily flare ups and functional loss/impairment.  The Board also acknowledges the objective evidence during the November 2019 VA examination of right ankle pain during dorsiflexion and plantar flexion and pain with weight bearing.  However, the Board does not find any additional functional loss that is not contemplated by the currently assigned 10 percent rating.  In this case, the Veteran was able to perform repetitive use testing with at least three repetitions and without additional loss of motion at the time of the November 2019 VA examination.  Additionally, while the November 2019 VA examiner indicated that the pain significantly limited functional ability with repeated use over time and during flare-ups, there was no loss of range of motion and neither instability nor dislocation were suspected.  Based on the foregoing, the Board finds that the evidence of record is persuasively against the assignment of a disability rating in excess of 10 percent for the Veteran's right ankle osteoarthritis based on functional impairment at any time during the period on appeal.

For these reasons, the Board finds that the evidence of record is persuasively against the Veteran's claim.  In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the evidence of record persuasively weighs against the assignment of a disability rating in excess of 10 percent, that doctrine is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021).   The appeal is denied.

 

 

J. Ragheb

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Lance, 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.