Citation Nr: 22006472
Decision Date: 02/04/22 Archive Date: 02/04/22
DOCKET NO. 17-35 484
DATE: February 4, 2022
ORDER
Entitlement to an initial rating in excess of 10 percent for right ankle osteoarthritis with tendonitis and sprain is denied.
REMANDED
Entitlement to an initial rating in excess of 20 percent for lumbosacral strain and degenerative disc disease (DDD) is remanded.
FINDING OF FACT
The Veteran's right ankle osteoarthritis with tendonitis and sprain is manifested by no more than moderate limitation of motion without evidence of ankylosis.
CONCLUSION OF LAW
The criteria for an initial rating greater than 10 percent for right ankle osteoarthritis with tendonitis and sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.45, 4.71a, Diagnostic Code 5271.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from March 1988 to July 1990.
These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2017 and July 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).
In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file.
In July 2021, the Board remanded the matter for further development and the case has been returned for appellate consideration.
Increased Rating
Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21.
The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, a "staged" rating is warranted if the evidence demonstrates distinct periods when a service-connected disability exhibits diverse symptoms meeting the criteria for different ratings, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.
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."). The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997).
1. Entitlement to an initial rating in excess of 10 percent for right ankle osteoarthritis with tendonitis and sprain.
This disability currently is rated under Diagnostic Codes 5010-5271 for traumatic arthritis of the ankle, with limitation of motion. 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 rating assigned. 38 C.F.R. § 4.27.
The schedular criteria for rating the ankle have been amended once during the pendency of this appeal, effective February 7, 2021. As pertinent to the present appeals, Diagnostic Codes 5003, 5010, and 5271 were amended, as discussed further below. The other rating criteria applicable to the ankle have not been changed. See 85 Fed. Reg. 76,453 (November 30, 2020).
When a law or regulation changes during the pendency of a veteran's appeal, the version most favorable to the veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, here, the amended diagnostic codes can only be applied in this matter from February 7, 2021.
Prior to February 7, 2021, Diagnostic Code 5010 referred to "arthritis due to trauma," and stated that traumatic arthritis is to be rated under Diagnostic Code 5003 for degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 provides that arthritis is generally rated based on limitation of motion of the joint. However, if limitation of motion of the joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be assigned. See 38 C.F.R. § 4.71a, Diagnostic Code 5003.
From February 7, 2021, Diagnostic Code 5010 refers to "post-traumatic arthritis," and states that such arthritis is to be rated as limitation of motion, dislocation, or other specified instability of the affected joint. The only change made to Diagnostic Code 5003 from February 7, 2021, is in the title of the diagnostic code, and does not include any substantive changes to the rating criteria.
Limited motion of the ankle is rated under Diagnostic Code 5271. Prior to February 7, 2021, Diagnostic Code 5271 stated that marked limitation of motion of the ankle warrants a 20 percent rating and moderate limitation of motion of the ankle warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271. From February 7, 2021, Diagnostic Code 5271 further clarifies that "marked" limitation of motion of the ankle is present when dorsiflexion is less than 5 degrees or plantar flexion is less than 10 degrees and warrants a 20 percent rating. Id. "Moderate" limitation of the ankle is present when dorsiflexion is less than 15 degrees or plantar flexion is less than 30 degrees and warrants a 10 percent rating. Id.
Normal range motion of the ankle, for VA compensation purposes, is from zero degrees ankle dorsiflexion to 20 degrees ankle dorsiflexion and from zero degrees ankle plantar flexion to 45 degrees ankle plantar flexion. 38 C.F.R. § 4.71a, Plate II.
Other diagnostic codes providing ratings for ankle disabilities include: Diagnostic Code 5270 for ankylosis of the ankle; Diagnostic Code 5272 for ankylosis of the subastragalar or tarsal joint; Diagnostic Code 5273 for malunion of os calcis or astragalus; and Diagnostic Code 5274 for astragalectomy. The Veteran's right ankle has not been shown to have these conditions during the period on appeal.
The record evidence shows that, during a May 2017 VA Ankle Conditions Disability Benefits Questionnaire (DBQ), the Veteran reported pain, instability, and swelling with prolonged standing and walking. Right ankle range of motion (ROM) was normal with dorsiflexion was to 20 degrees or greater and plantar flexion was to 45 degrees or greater. Pain was noted on examination and caused functional loss. There was no objective evidence of pain with weight bearing or crepitus. Repetitive use testing resulted in no additional loss of ROM. The examination was not conducted after repetitive use over time, and the examiner was not able to determine whether there would be any further limitation of functional ability in terms of ROM without resorting to mere speculation. Muscle strength testing was 5/5. There was no ankylosis. However, anterior drawer test revealed laxity in the right ankle. The examiner found that the Veteran's right ankle condition impacted his ability to perform occupational tasks due to pain and instability with prolonged walking, standing and running.
An August 2021 VA Ankle Conditions DBQ reflects that the Veteran reported constant right ankle pain of 9/10 with flare up of 10/10 three times per week, lasting one day. During the flare-ups, he stated the ankle felt weak and activity produced increased fatigue. The examiner indicated that severity of flare-ups was mild and caused difficulty with walking, standing, lifting and climbing. On ROM testing, right ankle dorsiflexion was to 10 degrees and plantar flexion was to 35 degrees. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing and crepitus. There was localized tenderness on the lateral ankle consistent with past fracture. Repetitive use testing resulted in no additional loss of range of motion. The examiner noted pain, fatigability, and weakness caused functional loss during flare-ups and additional loss of ROM would be dorsiflexion to 5 degrees and plantarflexion to 10 degrees. Muscle strength testing was 5/5 with muscle atrophy. There was no right ankle ankylosis. The examiner was not able to administer the talar tilt test because the Veteran was in too much pain. The Veteran used braces and a cane regularly. As to the disability's impact on the Veteran's ability to work, the examiner commented that the Veteran worked at a job requiring extensive sitting, standing, walking, lifting and climbing, which was difficulty due to pain.
In a September 2021 addendum, the examiner clarified that the right ankle ROM after repetitive use over time would be dorsiflexion to 5 degrees and plantarflexion to 10 degrees.
Taken together, the Board finds that the record evidence as a whole does not show that symptoms of the Veteran's right ankle disability result in what may be considered marked limitation of motion of the ankle so as to in turn meet, or approximate, the requirements for a higher 20 percent rating for the ankle. Although he has complained of persistent ankle pain and weakness, VA examinations show his right ankle dorsiflexion often still was normal, so to 20 degrees (May 2017) or to 10 degrees (August 2021). The Board acknowledges that, at worst, it was limited to 5 degrees as noted in the August 2021 VA examination, only after repetitive motion over time and during flare-ups. The same generally can be said of his right ankle plantar flexion since it was normal or even greater than normal, meaning to 45 degrees or greater (May 2017). The time when it was limited, to 35 degrees (August 2021) and at worst to 10 degrees after repetitive use over time and during flare-ups (as noted on the August 2021 VA examination). The Board finds that, on the whole, the degree of limited motion shown does not indicate markedly limited motion as opposed to moderately limited motion.
At no time, the Veteran's right ankle dorsiflexion was less than 5 degrees or plantar flexion was less than 10 degrees. Thus, the Board finds that "marked" limitation of motion of the ankle was not present.
Thus, the Board concludes that, even with consideration of sections 4.40, 4.45, 4.59 and DeLuca, including the Veteran's complaint of chronic ankle pain and weakness, the record evidence as a whole presents no basis for assigning a higher 20 percent rating for the right ankle under Diagnostic Code 5271.
In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (meaning 0-percent disabling) under the applicable diagnostic code. The Court explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with Diagnostic Code 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. Id. VA examiners consistently have indicated that the Veteran's right ankle dorsiflexion was not less than 5 degrees or plantar flexion was not less than 10 degrees. Even considering DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, the level of limitation of motion required for "marked" limitation of motion was not nearly approximated. In other words, the existing 10 percent rating adequately compensates the Veteran for the right ankle pain he experiences owing to the arthritis and its effect on his range of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003.
Consequently, the Board finds that the Veteran's right ankle disability has not manifested as marked limitation of motion such that an initial rating in excess of 10 percent is warranted.
REASONS FOR REMAND
1. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain and DDD is remanded.
VA treatment records reflect that the Veteran underwent a discectomy on March 2, 2017, during the considered period on appeal. Specifically, in a March 21, 2017 VA primary care note, he reported that he underwent an emergency surgery due to a herniated bulged disc, which was compressing his nerves acutely, at the St. Mark's Hospital. However, these private hospital records have not been associated with the claims file. Thus, a remand is required to obtain these records.
Additionally, in his January 2018 notice of disagreement, the Veteran raised a claim for a temporary total rating for his service-connected lumbar spine disability because he was unable to work following his back injury. Of note, a December 2017 VA examination report indicates that the Veteran was hospitalized for severe back pain in November 2017.
Concerning this, the RO has yet to consider whether assignment of a temporary total rating for the Veteran's lumbar spine disability is warranted for hospitalization or convalescence following surgery. The RO must adjudicate this issue first since it could impact the Board's adjudication of the increased rating claim on appeal.
The matter is REMANDED for the following actions:
1. Obtain any updated VA treatment records from the VA Medical Center in Salt Lake City, Utah, dated from November 2021 to the present. All efforts to obtain additional evidence must be documented in the claims file.
2. Request that the Veteran identify all non-VA medical providers who have treated him for service-connected lumbar strain and DDD since 2017. Then obtain copies of any identified medical records that are not already in the claims file. All records relating to the Veteran's back surgery on March 2, 2017 at the St. Mark's Hospital in Utah, in particular, must be obtained.
All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim, and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond.
3. Prior to readjudicating the claim for a higher rating for the lumbar spine disability, complete any needed development associated with the back surgery and adjudicate whether a temporary total rating is warranted for convalescence following the March 2, 2017 back surgery and/or the November 2017 hospitalization.
4. After the above development are completed, readjudicate the claim on appeal. If the claim remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond.
L. CHU
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board M. J. In, 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.