ANKLE IMPAIRMENT OF

GAYLE STROMMEN · 2026 · Case ID: A26039933

MIXED

Summary

The Veteran, an Army veteran who served from November 1990 to November 1994, appeals a rating decision concerning his right ankle, bilateral lower extremities, and hips. The Board granted an increased disability evaluation for the Veteran's right ankle limitation of motion, finding it met the criteria for a 20 percent rating due to marked limitation, including during repetitive use testing. The Board denied entitlement to an increased rating for right and left lower extremity radiculopathy, concluding the Veteran's symptoms were mild and did not warrant a compensable rating. The Board also denied entitlement to service connection for right and left hip disorders, noting the absence of a diagnosis or evidence of functional impairment related to service. The Veteran's claim for an earlier effective date for the right ankle increase was denied, as the evidence first indicated entitlement to the 10 percent rating on January 25, 2021, which was after the claim was filed.

Rationale

Met criteria for 20 percent rating due to marked limitation of motion; Repetitive use testing showed reduced range of motion; No ankylosis or additional functional loss due to pain

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5271

Docket No.

210726-174836

Full Decision Text

Citation Nr: A26039933
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210726-174836
DATE: April 29, 2026

ORDER

Entitlement to an increased, 20 percent disability evaluation for right ankle limitation of motion is granted.

Entitlement to an increased disability evaluation for right lower extremity radiculopathy, currently rated as noncompensable, is denied.

Entitlement to an increased disability evaluation for left lower extremity radiculopathy, currently rated as noncompensable, is denied.

Entitlement to an effective date prior to October 28, 2020 for the award of an increased, 10 percent disability evaluation for right ankle limitation of motion, is denied.

Entitlement to service connection for a right hip disorder is denied.

Entitlement to service connection for a left hip disorder is denied.

FINDINGS OF FACT

1. The Veteran's right ankle disability is productive of marked limitation of motion, without ankylosis or its equivalent during flares.

2. The Veteran's radiculopathy of the right lower extremity is productive of mild incomplete paralysis of the internal saphenous nerve.

3. The Veteran's radiculopathy of the left lower extremity is productive of mild incomplete paralysis of the internal saphenous nerve.

4. On October 28, 2020, the Veteran filed notice of intent to file a claim.

5. On December 8, 2020, the Agency of Original Jurisdiction (AOJ) received a Fully Developed Claim on a VA Form 21-526EZ, for a claim of entitlement to an increased disability evaluation for the Veteran's service-connected right ankle limitation of motion.

6. The evidence first showed symptoms and manifestations warranting an increased rating for the Veteran's right ankle limitation of motion at the January 25, 2021 VA ankle examination.

7. The Veteran does not have a right hip disorder attributable to service.

8. The Veteran does not have a left hip disorder attributable to service.

CONCLUSIONS OF LAW

1. The criteria for a disability evaluation of 20 percent, but no higher, for right ankle limitation of motion have been met. 38 U.S.C. § 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5271.

2. The criteria for a compensable disability evaluation for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8527.

3. The criteria for a compensable disability evaluation for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8527.

4. The criteria for an effective date prior to October 28, 2020, for the award of an increased, 10 percent disability evaluation for right ankle limitation of motion have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

5. The criteria for entitlement to service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310.

6. The criteria for entitlement to service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310.

REASONS AND
1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from November 1990 to November 1994.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. 38 C.F.R. § 3.2400(a)(1). The rating decision in this case was issued after February 19, 2019; thus, the AMA framework applies.

In a February 26, 2021 rating decision, the AOJ, in pertinent part, awarded the Veteran service connection for right lower extremity radiculopathy and left lower extremity radiculopathy; a noncompensable disability evaluation was assigned, per leg, effective October 28, 2020. The AOJ also awarded the Veteran an increased, 10 percent disability for his service-connected right ankle limitation of motion, effective October 28, 2020, as well as denied the Veteran's claims of entitlement to service connection for a right hip disorder and left hip disorder. The Veteran was notified of this decision on March 1, 2021.

The Veteran, on May 12, 2021, filed a VA Form 20-0996, Decision Review Request: Higher Level Review (HLR) requesting, in pertinent part, review of the February 2021 rating decision as to the disability evaluations assigned for the Veteran's right ankle limitation of motion, right lower extremity radiculopathy, and left lower extremity radiculopathy, as well as the denial of the Veteran's claims of entitlement to service connection for right and left hip disorders. The Veteran also requested review of the effective date assigned for the award of an increased disability evaluation for his right ankle limitation of motion.

In a July 14, 2021 HLR rating decision, the AOJ, in pertinent part, denied the Veteran's claims of entitlement to increased disability evaluations for right ankle limitation of motion, right lower extremity radiculopathy, and left lower extremity radiculopathy, as well as denied the Veteran's claims of entitlement to service connection for a right hip disorder and left hip disorder. The AOJ also denied the Veteran's claim of entitlement to an effective date prior to October 28, 2020 for the award of an increased, 10 percent disability evaluation for right ankle limitation of motion. The Veteran was notified of this decision on July 14, 2021.

The Veteran appealed that decision to the Board by filing a July 26, 2021 VA Form 10182, Decision Review Request: Board Appeal. The Veteran requested a Board hearing. On July 29, 2021, the Board acknowledged receipt of the Veteran's Board Appeal request (VA Form 10182). The Veteran was scheduled for a hearing before a Veterans Law Judge (VLJ) of the Board on April 15, 2025. However, on April 14, 2025, the Veteran, though his representative, withdrew his hearing request. As per the July 29, 2021 letter acknowledging the Veteran's Board appeal request, the Veteran had 90 days from the date of the hearing, or if he withdrew his hearing request, 90 days from the date of the withdrawal of the request for a Board hearing, to submit new evidence. Because the Veteran's hearing request was withdrawn on April 14, 2025, the Board will now consider all evidence of record as of the July 14, 2021 notice of the rating decision on appeal, and any evidence submitted within 90 days of the Veteran's April 14, 2025 withdrawal of the Veteran's hearing request.

Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty
letter acknowledging the Veteran's Board appeal request, the Veteran had 90 days from the date of the hearing, or if he withdrew his hearing request, 90 days from the date of the withdrawal of the request for a Board hearing, to submit new evidence. Because the Veteran's hearing request was withdrawn on April 14, 2025, the Board will now consider all evidence of record as of the July 14, 2021 notice of the rating decision on appeal, and any evidence submitted within 90 days of the Veteran's April 14, 2025 withdrawal of the Veteran's hearing request.

Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Rating

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the 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.

When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.: Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40).

1. Entitlement to an increased disability evaluation for right ankle limitation of motion, currently rated as 10 percent disabling.

The Veteran is assigned a 10 percent disability evaluation for his right ankle limitation of motion pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271.

1. Entitlement to an increased disability evaluation for right ankle limitation of motion, currently rated as 10 percent disabling.

The Veteran is assigned a 10 percent disability evaluation for his right ankle limitation of motion pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271.

Notably, during the appeal period, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). 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. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion, and a 20 percent rating is warranted for marked limitation of motion. Prior to February 7, 2021, the words moderate and marked were not defined in the regulations. Effective February 7, 2021, limited motion of the ankle under Diagnostic Code 5271 is more specifically defined. Moderate limited motion, which is still to be rated as 10 percent disabling, is defined as "less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion." Marked limited motion is still to be rated at a maximum 20 percent disabling and is defined as "less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion." See 85 Fed. Reg. 76464 (Nov. 30, 2020).

The 20 percent rating provided in Diagnostic Code 5271 is the highest rating available for limitation of motion for ankle disabilities. In order to get a higher rating, there must be ankylosis of the ankle. See 38 C.F.R. § 4.71, Diagnostic Code 5270.

Normal range of motion for the ankles is zero (0) to 20 degrees dorsiflexion and zero (0) to 45 degrees plantar flexion. See 38 C.F.R. § 4.71, Plate II.

After a review of the evidence, the Board finds that the Veteran's right ankle limitation of motion is manifested by marked limitation of motion of the right ankle, and thus, meets the criteria for a 20 percent disability evaluation for the entire rating period on appeal. Significantly, the January 2021 VA examination showed that the Veteran had plantar flexion to 40 degrees and dorsiflexion to 15 degrees upon active range of motion. However, upon repetitive use testing, the Veteran had plantar flexion to 30 degrees and dorsiflexion to 5 degrees. Repetitive use over time was estimated as plantar flexion to 25 degrees and dorsiflexion to 5 degrees. The Veteran denied experiencing flare-ups at the January 2021 VA examination. The January 2021 VA examination report was negative for ankylosis, and there was no evidence of deformity of the right ankle joint; muscle strength testing was normal and there was no evidence of atrophy. Although instability of the right ankle was suspected, as the Veteran reported occasional use of a right ankle brace, anterior drawer testing and talar tilt testing were normal. Veteran's VA treatment records note that the Veteran had a history of right ankle pain.

To the extent that the Veteran claims that his pain upon motion of his right ankle is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion; the VA examination report indicates that the Veteran complained of pain, but physical examination did not demonstrate any additional limitations in response to pain, including incoordination, weakness, or fatigability, beyond which was reflected in the examination report. In particular, the January 2021 VA examiner noted that there was functional loss due to pain on motion, but found that there was no additional weakness, fatigability, incoordination, or lack of endurance. Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability
been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion; the VA examination report indicates that the Veteran complained of pain, but physical examination did not demonstrate any additional limitations in response to pain, including incoordination, weakness, or fatigability, beyond which was reflected in the examination report. In particular, the January 2021 VA examiner noted that there was functional loss due to pain on motion, but found that there was no additional weakness, fatigability, incoordination, or lack of endurance. Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability evaluation for his right ankle limitation of motion, for the entire rating period on appeal.

The Board also considered whether the Veteran may be entitled to a higher rating under other potentially applicable Diagnostic Codes for the rating period. With regard to the criteria under Diagnostic Code 5270, there is no evidence of ankylosis of the right ankle. The above evidence reflects that, at no time during the appeal period, have the Veteran's symptoms more nearly approximated ankylosis of the right ankle in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees, or in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees with abduction, adduction, inversion, or eversion deformity warranting a 30 or 40 percent rating under Diagnostic Code 5270. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare.").

Thus, a 20 percent rating but no higher, is assigned for right ankle limitation of motion, for the entire rating period on appeal.

2. Entitlement to an increased disability evaluation for right lower extremity radiculopathy, currently rated as noncompensable.

3. Entitlement to an increased disability evaluation for left lower extremity radiculopathy, currently rated as noncompensable.

The Veteran is currently assigned a noncompensable (0 percent) disability evaluation, per lower extremity, for his radiculopathy of the right and left lower extremities pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8527.

Under Diagnostic Code 8527, a noncompensable rating is provided for mild to moderate incomplete paralysis of the internal saphenous nerve. A 10 percent rating is provided for severe incomplete paralysis to complete paralysis of the internal saphenous nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8527.

The Court in Chavis v. McDonough held that benchmarks established by VA must be discussed in addressing the subjective terms of these regulations. See Chavis v. McDonough, 34 Vet. App. 1 (2021) ("Without established benchmarks for those subjective terms, the Court is left without standards upon which to review the Board's decision." (citing Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011))).

The Board notes, for reference and illustrative purposes, that the definition for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight," and definitions for "slight" include small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions of "severe" include extremely intense. Id. at 1012. It is noted that the term "moderately severe" indicates impairment greater than moderate, but not to the extent as to be considered severe.

The Board also finds that "mild" corresponds to symptoms, however slight, sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes. In general, this level of severity is limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis.

"Moderate" symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases, a larger area in the nerve distribution may be affected by sensory symptoms. Other
2. It is noted that the term "moderately severe" indicates impairment greater than moderate, but not to the extent as to be considered severe.

"Moderate" symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases, a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

Finally, the "severe" evaluation level is characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123).

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).

In July 2024, the U.S. Court of Appeals for Veterans Affairs held that the assignment of ratings based on paralysis does not preclude separate ratings for neuritis or neuralgia of the same nerve. Banschbach v. McDonough, No. 22-6609, 2024 U.S. App. Vet. Claims LEXIS 1163 (Vet. App. July 26, 2024). The Court explained that each nerve has a diagnostic code and rating scale for paralysis, as well as additional diagnostic codes (but no ratings) for "neuritis" and "neuralgia." The Court acknowledged that adjudicators must avoid pyramiding, i.e., evaluation of the same disability under various diagnoses. However, the Court noted that the rating schedule provides that separate conditions or manifestations of the same condition are to be rated separately, unless otherwise provided by the rating schedule. See 38 C.F.R. § 4.25(b). Moreover, the Court concluded that the Board must exhaust all schedular alternative for rating a disability. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). The Court further noted that paralysis, neuritis, and neuralgia are uniquely defined, indicating that each may present separately ratable manifestations.

Under 38 C.F.R. § 4.123, neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.

Neuralgia, cranial or peripheral, described in 38 C.F.R. § 4.124, is characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve.

After a review of all the evidence, the Board finds that the Veteran's right lower extremity radiculopathy and left lower extremity radiculopathy most closely approximates the criteria for the currently assigned noncompensable (0 percent) disability evaluation, per lower extremity, for the rating period on appeal. In this regard, the Board notes that, at the January 2021 VA peripheral nerves examination, the Veteran's right lower extremity radiculopathy and left lower extremity radiculopathy were described as mild for the right and left lower extremities. The January 2021 VA examination report reflects that the Veteran had mild constant pain and mild intermittent pain; according to the report, the Veteran did not experience paresthesias and/or dysesthesias or numbness. At the January 2021 VA examination, the Veteran had decreased sensation of the lower leg and ankles bilaterally, but normal sensation at the feet/toes and thigh/knee. Muscle strength was normal and there was no evidence of muscle atrophy; the Veteran's deep tendon reflexes were also normal. The Board points out that the Veteran's symptomatology was relatively consistent during the rating period and the Veteran's VA treatment records for the rating period do not demonstrate a worsening of manifestations consistent with severe radiculopathy of the lower extremities.

The Board finds that, in considering the evidence as a whole, the characterization of the Veteran's symptomatology as mild by the January 2021 VA examiner is highly probative. The January 2021 VA examiner performed a physical examination and relevant testing prior to determining the extent of his radiculopathy of the right and left lower extremities. Additionally, the dictionary definition of mild is in accordance with the Veteran's overall disability picture, his symptoms were limited in scope and effect. Further, as discussed, he experiences mild pain, without paresthesias/dysesthesias or numbness, no atrophy, normal reflexes and normal muscle strength. All other symptoms were sensory only.

In conclusion, the Veteran's symptomatology most closely approximates the criteria for the currently assigned noncompensable (0 percent) disability evaluation, per lower extremity, for mild incomplete paralysis of the internal saphenous nerve as a result of his service-connected radiculopathy of the right and left lower extremities. The Board notes that the Veteran asserted that his symptoms have worsened. Nonetheless, the evidence of record, to include his statements that his symptoms have worsened, does not demonstrate that he experiences severe incomplete paralysis or complete paralysis of the right and/or left internal saphenous nerve during this rating period. Further, separate ratings for neuritis and neuralgia are not warranted as the Veteran's symptoms of pain are compensated in the current noncompensable disability rating and a separate rating would constitute prohibited pyramiding. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124.

Accordingly, the Board finds that the Veteran is not entitled to a compensable disability rating for his service-connected radiculopathy of the right and left lower extremities. 38 C.F.R. §§ 4.3, 4.7. The claims for increased ratings are denied.

Earlier Effective Date

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a).

In assigning effective dates for increases, except as provided in paragraph § 3.400(o)(2) and § 3.401(b), the effective date is date of receipt of claim or date entitlement arose, whichever is later. As an exception to this general rule, § 3.400(o)(2) provides that the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such
fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a).

In assigning effective dates for increases, except as provided in paragraph § 3.400(o)(2) and § 3.401(b), the effective date is date of receipt of claim or date entitlement arose, whichever is later. As an exception to this general rule, § 3.400(o)(2) provides that the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise, the effective date is the date of claim.

The Court has held that 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim). 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, supra.

The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).

Upon receipt of an intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by VA. If VA receives a complete application form prescribed by VA, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b).

Under the modernized, AMA, system of review, an effective date can be preserved if a claim is continuously pursued. For a claim to be continuously pursued, a supplemental claim must be filed within one year after a final decision or the date entitlement arose. 38 C.F.R. § 3.2500(h). For continuously pursued claims, except as otherwise provided by other provisions of this part, including 38 C.F.R. § 3.400, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision, provided that any appeal to the U.S. Court of Appeals for Veterans Claims must be accepted as timely by that court. 38 C.F.R. § 3.2500(h)(1).

Except as otherwise provided in 38 C.F.R. § 3.2500, for supplemental claims received more than one year after the date on which the AOJ issues notice of a decision or the Board issues notice of a decision, the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2).

In a recent decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated the part of 38 C.F.R. § 3.155 that excluded supplemental claims from the intent-to-file framework; thus, if a supplemental claim is received within one year of an intent to file, the date the intent to file was received is the date of claim for effective date purposes. Military-Veterans Advocacy v. McDonough, 7 F.4th 1110 (Fed. Cir. 2021).

A pending claim is an application, formal or informal, which has not been finally adjudicated. 38
supplemental claim. 38 C.F.R. § 3.2500(h)(2).

A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007).

Regarding the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober; 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).

1. Entitlement to an effective date prior to October 28, 2020, for the award of an increased, 10 percent disability evaluation for right ankle, slight limitation of motion.

In arguing for the assignment of an earlier effective date for the award of an increased, 10 percent disability evaluation for his service-connected right ankle limitation of motion, the Veteran argues that the award of an increased disability evaluation should be retroactive. The Veteran did not specify a retroactive effective date to which he felt entitled, nor did he state his reasons for seeking an earlier effective date.

As noted above, the effective date for an increased disability rating is either the date entitlement arose or the date of receipt of claim, whichever is later, or, if entitlement arose within one year prior to the date of claim, then that date is the effective date.

With regard to the date the claim was received, the Veteran filed a claim for service connection for a right ankle condition on March 26, 2013, service connection was granted in a January 2013 rating decision and notice of the decision and the Veteran's appellate rights were sent to the Veteran on January 31, 2013. No appeal was taken from this decision and no new and material evidence was received within one year. Thus, this decision became final and the March 26, 2013 claim is no longer pending and cannot be the date of claim.

Next, VA received a communication from the Veteran evincing an intent to apply for benefits on October 28, 2020. On December 8, 2020, VA received a completed VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), wherein the Veteran, in pertinent part, claimed entitlement to an increased disability evaluation for his service-connected right ankle limitation of motion. As the December 2020 formal claim was received within one year of the October 28, 2020, intent to file, the date of receipt of the claim goes back to the date of the October 28, 2020 intent to file. No other claims were received between the January 2013 decision and the October 28, 2020, intent to file. Accordingly, the Board finds that the appropriate date of claim is October 28, 2020.

For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110;
, 2020, intent to file, the date of receipt of the claim goes back to the date of the October 28, 2020 intent to file. No other claims were received between the January 2013 decision and the October 28, 2020, intent to file. Accordingly, the Board finds that the appropriate date of claim is October 28, 2020.

For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires: (1) a determination of the date of the receipt of the claim and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521.

Turning to the question of when entitlement to an increased disability evaluation for right ankle limitation of motion arose, the Board reiterates that the applicable rating provision, Diagnostic Code 5271, states that a 10 percent rating is warranted for moderate limitation of motion, and a 20 percent rating is warranted for marked limitation of motion. Prior to February 7, 2021, the words moderate and marked were not defined in the regulations. Effective February 7, 2021, limited motion of the ankle under DC 5271 is more specifically defined. Moderate limited motion, which is still to be rated as 10 percent disabling, is defined as "less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion." Marked limited motion is still to be rated at a maximum 20 percent disabling and is defined as "less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion." See 85 Fed. Reg. 76464 (Nov. 30, 2020).

Review of the record demonstrates no evidence of treatment or complaints related to the Veteran's right ankle limitation of motion in the year period from October 28, 2019 to October 28, 2020, the date of his claim for an increased rating. Indeed, the Board observes that the Veteran's VA available treatment records during that timeframe did not reflect any complaints or treatment for his right ankle limitation of motion. Moreover, the Board finds that the January 25, 2021 VA ankle examination is the first time that an examiner or medical provider indicated that the Veteran had moderate limitation of motion as required for a 10 percent disability rating. As previously discussed, the January 25, 2021 VA examination report showed active range of motion to 15 degrees dorsiflexion and 40 degrees plantar flexion; repetitive use testing showed range of motion to 5 degrees dorsiflexion and plantar flexion to 30 degrees. For repetitive use over time, range of motion was estimated as 5 degrees dorsiflexion and 25 degrees plantar flexion. Therefore, the Board finds that earliest date that it was factually ascertainable that the Veteran met the criteria for a 10 percent rating for his right ankle limitation of motion was January 25, 2021, at his VA ankle examination. Accordingly, the Board finds that it was not factually ascertainable that the Veteran's right ankle limitation of motion increased in the year prior to his October 28, 2020, date of claim, and an effective date within this year is not warranted.

Accordingly, October 28, 2020 is the proper effective date for the award of a 10 percent rating for his service-connected right ankle limitation of motion. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Veteran's claim for an earlier effective date is denied.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in
proper effective date for the award of a 10 percent rating for his service-connected right ankle limitation of motion. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Veteran's claim for an earlier effective date is denied.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Disability proximately due to, or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310.

At the outset, the Board notes that the Veteran does not allege, and the evidence does not show, that the Veteran was exposed to combat during service. As such, the provisions of 38 U.S.C. § 1154 are not applicable in this case.

2. Entitlement to service connection for a right hip disorder.

3. Entitlement to service connection for a left hip disorder.

Based on the evidence of record, the Board finds that the Veteran's claims of entitlement to service connection for a right hip disorder and left hip disorder must be denied.

The Board notes that the July 2021 rating decision noted the following favorable finding: the Veteran is service connected for the primary disabilities of limitation of motion of the lumbar spine, right ankle limitation of motion, residuals of fracture left fibula with painful motion of the knee and impairment of the leg, and radiculopathy of the bilateral lower extremities. The Board is bound by this favorable finding.

As an initial matter, the Board notes that whether service connection is claimed on direct or secondary basis, a necessary element for establishing such a claim is the existence of current disability. In this case, the Veteran must show that he currently has a right hip disorder and/or left hip disorder due to an event, disease, or injury in service. The Board acknowledges that the Veteran reports experiencing bilateral hip pain. However, there is no evidence that the Veteran has been clinically diagnosed with a right hip disorder and/or left hip disorder since service. In this regard, the Board observes that the Veteran's available VA treatment records do not show that the Veteran has been treated for his right and/or left hips or that he has been diagnosed with a right hip disorder and/or left hip disorder. In short, the evidence fails to show that the Veteran has a diagnosis of a right hip disorder and/or left hip disorder, which is causally or etiologically related to his service. See Boyer v. West, 210 F
to an event, disease, or injury in service. The Board acknowledges that the Veteran reports experiencing bilateral hip pain. However, there is no evidence that the Veteran has been clinically diagnosed with a right hip disorder and/or left hip disorder since service. In this regard, the Board observes that the Veteran's available VA treatment records do not show that the Veteran has been treated for his right and/or left hips or that he has been diagnosed with a right hip disorder and/or left hip disorder. In short, the evidence fails to show that the Veteran has a diagnosis of a right hip disorder and/or left hip disorder, which is causally or etiologically related to his service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability).

Additionally, to the extent that the Veteran asserts that his right and left hip pain constitutes a disability related to service, including as secondary to his service-connected disabilities, the Board points out that subjective complaints of pain, in the absence of functional impairment, are insufficient to establish a current disability; the Veteran's post-service treatment records do not reflect that the Veteran's right hip and/or left hip pain result in any functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1367 (Fed. Cir. 2018). Thus, there is no evidence of a right hip disorder and/or left hip disorder, for which compensation can be provided, at any time during the appeal period.

The Board acknowledges that an examination was not conducted in this appeal. However, VA is only required to provide a claimant with a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). This determination must be based on "the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). Here, the only evidence of a possible connection between the Veterans symptoms and service are the Veteran's own conclusory statements, and these statements are not sufficient to trigger VA's obligation to obtain and examination or opinion. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination).

The Board has considered the Veteran's statements. However, the Veteran's statements are insufficient to establish that the Veteran has a right hip disorder and/or left hip disorder related to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report observable symptoms such as hip pain, but he is not competent to determine the cause of his symptoms. Such determinations require more than mere observation of symptoms, but medical training and knowledge which the Veteran does not have. Further, the Veteran is not competent to diagnose a right hip disorder and/or left hip disorder. This disability requires medical testing and training to diagnose. Thus, his lay assertions of diagnoses and nexus are not competent evidence as to the claims.

As such, there has been no finding of a right hip disorder and/or left hip disorder proximate to or during the pendency of the Veteran's claims. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Therefore, the evidence does not support a finding of entitlement to service connection for a right hip disorder and/or left hip disorder. Accordingly, the claims are denied. See Madden v. Gober, 125 F.3d 1477, 1481 (1997).

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Brokowsky, H.

The Board's decision in this case is binding only with respect to the instant matter
. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Therefore, the evidence does not support a finding of entitlement to service connection for a right hip disorder and/or left hip disorder. Accordingly, the claims are denied. See Madden v. Gober, 125 F.3d 1477, 1481 (1997).

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Brokowsky, H.

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.

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