Citation Nr: A23009051 Decision Date: 05/04/23 Archive Date: 05/04/23 DOCKET NO. 210727-174625 DATE: May 4, 2023 ORDER Entitlement to an effective date earlier than July 26, 2016 for the grant of service connection for bilateral flatfoot is denied. Entitlement to an effective date of April 6, 2016, but no earlier, for the grant of service connection for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right ankle is granted. Entitlement to an effective date of April 6, 2016, but no earlier, for the grant of service connection for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the left ankle is granted. Entitlement to an initial 20 percent disability rating, but no higher, for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right ankle based on limitation of motion is granted. Entitlement to an initial 20 disability rating, but no higher, for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the left ankle based on limitation of motion is granted. Entitlement to a separate 10 percent disability rating, but no higher, for instability of the right ankle is granted. Entitlement to a separate 10 percent disability rating, but no higher, for instability of the left ankle is granted. Entitlement to an initial 50 percent disability rating, but no higher, for bilateral flatfoot is granted. FINDINGS OF FACT 1. The Veteran submitted an Intent to File a compensation claim on July 26, 2016, and he filed a complete claim application for entitlement to service connection for bilateral flatfoot on August 18, 2016, within one year of submission of the Intent to File. 2. The Veteran submitted an Intent to File a compensation claim on April 6, 2016, and he filed a complete claim application for entitlement to service connection for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right ankle on June 14, 2016, within one year of submission of the Intent to File. 3. The Veteran submitted an Intent to File a compensation claim on April 6, 2016, and he filed a complete claim application for entitlement to service connection for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the left ankle on June 14, 2016, within one year of submission of the Intent to File. 4. The Veteran's posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right ankle has manifested in marked limitation of motion throughout the appeal period. 5. The Veteran's posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the left ankle has manifested in marked limitation of motion throughout the appeal period. 6. The Veteran's posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right ankle has manifested in slight lateral instability throughout the appeal period. 7. The Veteran's posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the left ankle has manifested in slight lateral instability throughout the appeal period. 8. The Veteran's bilateral flatfoot disability has manifested in marked pronation that was not improved by orthopedic shoes or appliances throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 26, 2016 for bilateral flatfoot have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 2. The criteria for an effective date of April 6, 2016, but no earlier, for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right ankle have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 3. The criteria for an effective date of April 6, 2016, but no earlier, for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the left ankle have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 4. The criteria for entitlement to an initial 20 percent disability rating, but no higher, for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right ankle based on limitation of motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5271. 5. The criteria for entitlement to an initial 20 percent disability rating, but no higher, for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the left ankle based on limitation of motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5271. 6. The criteria for entitlement to a separate 10 percent disability rating, but no higher, for instability of the right ankle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5262. 7. The criteria for entitlement to a separate 10 percent disability rating, but no higher, for instability of the left ankle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5262. 8. The criteria for entitlement to an initial 50 percent disability rating, but no higher, for bilateral flatfoot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1979 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision of the Department of Veterans Affairs (VA) regional office (RO). The Veteran timely filed a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and selected the evidence docket. Under the evidence docket, the Board reviews the claims based on the evidence of record at the time of the prior rating decision (November 6, 2020) and evidence received within 90 days following receipt of the Notice of Disagreement (NOD) (by October 25, 2021). 38 C.F.R. § 20.303. In this case, additional evidence was received within the appropriate window for evidence docket review; therefore, the Board will consider the newly submitted evidence. The Veteran's service-connected disability of left posterior tibial tendonitis and osteoarthritis was originally rated separately from left ankle sinus tarsi syndrome and his service-connected disability of right posterior tibial tendonitis and osteoarthritis was rated separately from right ankle tarsi sinus tarsi syndrome. In a later September 2022 rating decision, the RO found that clear unmistakable error was committed when these disabilities were rated separately, as these two disabilities (posterior tibial tendonitis and osteoarthritis and sinus tarsi syndrome) involve the same or similar evaluation criteria. Rating them separately constituted impermissible pyramiding. See 38 C.F.R. § 4.14. This error has been rectified and at present these disabilities are rated together, as shown on the title page of this decision. Effective Dates - Applicable Laws and Regulations Generally, the effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If VA receives a complete claim application form within one year of receipt of an intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155. With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts-found basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. 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). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. 1. Entitlement to an effective date earlier than July 26, 2016 for the grant of service connection for bilateral flatfoot is denied. The Veteran maintains entitlement to an effective date earlier than July 26, 2016 for the grant of service connection for bilateral flatfoot. The Board finds that the evidence of record does not persuasively support the award of an effective date earlier than July 26, 2016 for the grant of service connection for bilateral flatfoot. Procedurally, the Veteran submitted an Intent to File a compensation claim on July 26, 2016. On August 18, 2016, the Veteran submitted a complete application for his claim of entitlement to service connection for bilateral flatfoot on a VA Form 21-526EZ, within one year of receipt of the Intent to File. An earlier effective date based on filing a claim within one year after separation from service is not warranted. The Veteran does not maintain, nor does the record reflect that the Veteran filed any service connection claim by 1982, within one year of separation from service, to include for the disabilities on appeal herein. In fact, the Veteran did not file any correspondence regarding the claimed bilateral flatfoot disability until the July 26, 2016 Intent to File and subsequent August 18, 2016 complete application. As for the date entitlement arose, because the RO granted service connection from July 26, 2016, the date of the submission of the Intent to File a compensation claim, it implicitly found that entitlement to these benefits had already arisen by the date of the claim. See Akers v. Shinseki, 673 F.3d 1352, 1359 (Fed. Cir. 2012). This implicit finding benefits the Veteran since an effective date later than July 26, 2016, would be warranted if entitlement did not actually arise until after the date of claim. In short, the current effective date of July 26, 2016 for the Veteran's bilateral flatfoot disability is the date of receipt of the Intent to File, and July 26, 2016 is the later date between the date of the claim and the date entitlement arose. Therefore, the Board finds that entitlement to an earlier effective date for the grant of service connection for bilateral flatfoot is not warranted. Reasonable doubt is not for application. See 38 U.S.C. § 5107. 2. Entitlement to an effective date of April 6, 2016, but no earlier, for the grant of service connection for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right ankle is granted. 3. Entitlement to an effective date of April 6, 2016, but no earlier, for the grant of service connection for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the left ankle is granted. The Veteran maintains entitlement to an effective date earlier than September 12, 2016 for the grants of service connection for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right and left ankles. The Board finds that the evidence of record persuasively supports an earlier effective date of April 6, 2016 for the grants of service connection for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right and left ankles. Procedurally, the Veteran submitted an Intent to File compensation claim on April 6, 2016. On June 14, 2016, he submitted a complete application for his claim of entitlement to service connection for a bilateral ankle disability on a VA Form 21-526EZ, within one year of receipt of the Intent to File. An earlier effective date based on filing a claim within one year of separation from service is not warranted, as the Veteran does not maintain, nor does the record reflect that he filed any service connection claim by 1982, to include for the disabilities on appeal herein. In fact, the Veteran did not file any correspondence regarding the claimed bilateral ankle disability until the April 6, 2016 Intent to File and subsequent June 14, 2016 complete application. Regarding the date entitlement arose, the Board acknowledges that the Veteran's diagnosis of osteoarthritis of the bilateral ankles and its etiological relationship to service was confirmed at a July 2016 VA examination. However, as osteoarthritis develops over time, it is logical to assume that this disability first manifested prior to the date of the examination and prior to the date of receipt of the Intent to File, which was a mere three months earlier. Resolving all reasonable doubt on this point in the Veteran's favor, the Board finds that the date entitlement arose for the Veteran's bilateral ankle disability is before the date he submitted his Intent to File. As such, the later date, April 6, 2016, controls. In summary, the Board finds that entitlement to an effective date of April 6, 2016, but no earlier, is warranted for the Veteran's service-connected posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right and left ankles. The claims are granted. Increased Ratings - Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to an initial 20 percent disability rating, but no higher, for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right ankle based on limitation of motion is granted. 5. Entitlement to an initial 20 disability rating, but no higher, for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the left ankle based on limitation of motion is granted. 6. Entitlement to a separate 10 percent disability rating, but no higher, for instability of the right ankle is granted. 7. Entitlement to a separate 10 percent disability rating, but no higher, for instability of the left ankle is granted. 8. Entitlement to an initial 50 percent disability rating, but no higher, for bilateral flatfoot is granted. The Veteran maintains entitlement to initial disability ratings in excess of 10 percent for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right and left ankles. He also maintains entitlement to an initial disability rating in excess of 0 percent for bilateral flatfoot. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Ankle disabilities can be rated under Diagnostic Codes 5270 (ankylosis of the ankle); 5271 (limitation of motion); 5272 (ankylosis of the subastragalar or tarsal joint); 5273 (malunion of os calcis or astragalus); and 5274 (astragalectomy). 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. The Veteran's right and left ankle disabilities are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If 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. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the change in regulation, under Diagnostic Code 5271, a 10 percent rating is warranted with moderate limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. A 20 percent rating is warranted with marked limitation of motion. Id. 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." See 85 Fed. Reg. 76464 (Nov. 30, 2020). 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." Id. Acquired flatfoot is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, and the diagnostic criteria for this code did not change, effective February 7, 2021. Mild flatfoot, with symptoms relieved by built-up shoe or arch support, is rated as noncompensable. Moderate flatfoot, with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated at 10 percent. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. Turning to the evidence of record, the Veteran underwent a VA examination for his ankles in July 2016. A diagnosis of osteoarthritis of the bilateral ankles was confirmed. There, the Veteran reported chronic bilateral ankle pain when he is on his feet or walks for prolonged periods of time. He also indicated that his ankles make noise when he walks. The Veteran stated that he experiences severe pain during flare-ups. During a severe bilateral ankle flare-up, he was hospitalized. At that time, he was taken out by wheelchair and could barely walk to his car. On physical examination, initial range of motion of the Veteran's right ankle was abnormal; dorsiflexion was from 0 to 15 degrees and plantar flexion was from 0 to 40 degrees. The VA examiner observed that the Veteran's abnormal range of motion contributed to objective functional loss, including moderate pain on motion and pain with weightbearing. There was also objective evidence of crepitus. Initial range of motion of the Veteran's left ankle was abnormal; dorsiflexion was from 0 to 15 degrees and plantar flexion was from 0 to 40 degrees. The VA examiner observed that the Veteran's abnormal range of motion contributed to objective functional loss, including moderate pain on motion, pain with weightbearing, and decreased range of motion. There was also objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions in both ankles without additional loss of range of motion after three repetitions. The Veteran was examined immediately after repeated use over time. The VA examiner noted that pain, fatigue, and weakness significantly limited the Veteran's functional ability in both ankles with repeated use over time. Dorsiflexion in both ankles was limited to 15 degrees, and plantar flexion in both ankles was limited to 35 degrees. While the VA examination was not conducted during a flare-up, the VA examiner found that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. He noted that pain, fatigue, and weakness significantly limited the Veteran's functional ability in both ankles during flare-ups. The VA examiner estimated that dorsiflexion in both ankles was limited to 15 degrees, and plantar flexion in both ankles was limited to 30 degrees during flares. Additional contributing factors of the Veteran's right and left ankle disabilities included less movement than normal. Muscle strength testing was provided. There was no reduction in muscle strength in either ankle, nor was atrophy observed. The VA examiner determined that there was no ankylosis in either ankle. Ankle instability or dislocation was not suspected. The Veteran did not have, nor had he ever had, "shin splints," stress fractures, achilles tendonitis, achilles tendon rupture, or malunion of calcaneus (os calcis) or talus, nor had he ever had a talectomy. At the time of the VA examination, the Veteran had not had any surgical procedures performed on his ankles. The Veteran reported that he regularly used a cane and occasionally used a walker. Functioning of the Veteran's ankles was not so diminished that amputation with prosthesis would equally serve the Veteran. In July 2016, the Veteran submitted a letter from his wife. She indicated that the Veteran suffered from severe ankle pain and that she tried to provide comfort by buying a hydrotherapy foot spa and custom orthotic inserts for his boots. July 2016 private treatment records document the Veteran's complaints of constant aching pain in the bilateral ankles. He stated that it was aggravated by walking and standing and that it was improved by getting off his feet and medication. He stated that his sleep was interrupted due to intense pain. His gait was normal; however, range of motion in both ankles was decreased. He was referred to orthopedics for further evaluation. The Veteran proffered X-rays of his bilateral ankles and feet from July and August 2016. The July 2016 films of the Veteran's ankles were assessed as normal; no acute osseus abnormality was shown. The August 2016 films showed soft tissue swelling about the left ankle with no acute osseus abnormality identified. The film of the Veteran's left and right foot both showed mild narrowing of the first metatarsal-phalangeal joint and a less than 5 mm plantar calcaneal spur; the images of the Veteran's feet were otherwise unremarkable. In August 2016, a private radiologist attempted to interpret the August X-rays. He noted that that examination was suboptimal, as both films that were submitted to him had markers indicating that they were both left ankles; the images appeared to have been mismarked. The private radiologist noted that it was impossible to determine which was the left or right foot, and that this was particularly important because one of the feet demonstrated bone spurs at the insertion of the plantar fascia in the calcaneus, and the other did not have those bone spurs. An August 2016 private evaluation report indicates that the Veteran had an abnormal gait and ambulated with a cane. Range of motion in both ankles was decreased. An early September 2016 private evaluation report documents the Veteran's complaints of bilateral foot and ankle pain that he described as "totally disabling." The Veteran was alert and oriented. He stated that the worst pain was on the lateral aspects of his ankles, particularly the right ankle, and that both heels of his feet hurt. The Veteran indicated that he had previously used gabapentin and was taking 900mg a day, which did not help. On physical examination, pedal pulses were palpable in both feet. In weight-bearing position, he had significant moderate bilateral pronation. Lower extremity examination revealed a negative bilateral posterior tibial Tinel's sign, and he had no pain on palpation of the bilateral posterior tibial tendons. He had bilateral ankle and rear foot edema with significant pain on palpation of the bilateral sinus tarsi and the anterior lateral aspects of the bilateral ankle joints. The private examiner also elicited tenderness on palpation of the bilateral plantar heels at the attachment of the fascia. The private examiner felt that the main component of the Veteran's pain was his significant uncontrolled pronation of the bilateral feet. Ultimately, he indicated that the Veteran may require Richie braces and would at least benefit from Spenco or Super Feet orthotics and a higher dose of gabapentin. He felt that the Veteran's radiculopathy exacerbated his musculoskeletal pain due to excessive pronation which caused bilateral sinus tarsi syndrome. This pronation also caused chronic strain of the ankles, resulting in bilateral chronic capsulitis of the ankles and subtalar joints. The private examiner also noted that the Veteran had bilateral fascitis which may be secondary to his weight and pronation. He also noted that use of a topical compounded transdermal pain cream may be helpful. At that time, the private examiner injected the left subtalar joint with lidocaine pain and 3 mg of generic Celestone. He noted that the Veteran would also need injections in the bilateral ankles, his right subtalar joint, and his bilateral heels at another appointment. Further, the private examiner demonstrated a rigid-type Super Feet orthotic that he recommended for use. He also told the Veteran to start of 300 mg of gabapentin for 3 to 4 days which could gradually be increased up to 1200 mg if needed. The Veteran was prescribed new ankle braces for his chronic ankle pain secondary to excessive pronation and exacerbated by radiculopathy. Later that month, the Veteran returned to the private examiner. He stated that he was still having pain and had not received his Swede-o ankle braces yet. The private examiner documented severe pronation of the feet and bilateral foot and ankle pain. He again noted that at some point the Veteran would require Richie braces but wanted to try Swede-o ankle braces first with a good over-the-counter orthotic. The private examiner noted that the previous injection had not seemed to help as the Veteran was still having pain in both ankles and his rear foot area and was taking 1200 mg of gabapentin daily. On physical examination, the private examiner noted that the Veteran continued to experience pain on examination of the bilateral subtalar joints and the bilateral anterior lateral ankles. He also observed bilateral pes planus with severe pronation. There was still tenderness on palpation of the left subtalar joint, but the private examiner felt that it was not as acute as it had been in the past. The private examiner felt that the Veteran experienced chronic bilateral pain secondary to excessive pronation. He wanted to inject the lateral left ankle for chronic capsulitis and have the Veteran follow-up in a few weeks for re-evaluation. He hoped that the Veteran would have his braces by then which would help immobilize his ankle and allow some stability to his ankles and feet. The private examiner diagnosed the Veteran with bilateral sinus tarsi syndrome with capsulitis and chronic capsulitis of the ankle joints. At that time, the private examiner recommended that the Veteran continue to wear shoes with good support. He injected the anterior lateral aspect of the left ankle joint with lidocaine and bupivacaine plain with 6mg of generic Celestone. In late October 2016, the Veteran returned to the private examiner. He was still in a lot of pain. He had received the braces but stated that they were painful and he could not tolerate them. He also got Super Feet inserts which he reported were also painful and aggravated his heels. The Veteran stated that he continued to take 1200 mg of gabapentin but had some compromise in kidney function, so the private examiner instructed him not to take any more of it. The Veteran denied much activity, stating that sitting around elevating his feet was helpful. He did not want any more injections, and with his kidney issues he was not a candidate for oral NSAIDs. The private examiner stated that he was limited in his offerings because of the Veteran's health issues and the fact that he did not want any more steroid injections. On physical examination, the Veteran had significant pain present on palpation of the plantar aspects of the bilateral heels at the attachment of the fascia as well as tenderness of the left sinus tarsi and left ankle joint, worse than on the right. At that time, the private examiner recommended that the Veteran break in his Super Feet orthotics gradually. He also told the Veteran to try the braces again but to make sure that they were not too tight. The Veteran did feel some relief in a topical compounded analgesic pain cream which the private examiner instructed him to continue as needed. The Veteran underwent another VA examination for his ankles in December 2016. The diagnosis of osteoarthritis of the bilateral ankles was confirmed. At that time, the Veteran did not report flare-ups of his ankles. He stated that he did not walk much due to his bilateral ankle disability. Ankle swelling and instability were noted. On physical examination, initial range of motion of the Veteran's right ankle was abnormal; dorsiflexion was from 0 to 5 degrees, and plantar flexion was from 0 to 25 degrees. The VA examiner observed that the Veteran's abnormal range of motion contributed to objective functional loss, including pain on motion, pain with weightbearing, and pain with mild palpation. There was no objective evidence of crepitus. On physical examination, initial range of motion of the Veteran's left ankle was abnormal; dorsiflexion was from 0 to 5 degrees, and plantar flexion was from 0 to 20 degrees. The VA examiner observed that the Veteran's abnormal range of motion contributed to objective functional loss, including pain on motion, pain with weightbearing, and pain with mild palpation. There was also objective evidence of crepitus. The Veteran was not able to perform repetitive use testing with at least three repetitions in either ankle because it was too painful. The Veteran was not examined immediately after repetitive use over time. The VA examiner found that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The VA examiner noted that lack of endurance significantly limited the Veteran's functional ability in his right ankle with repeated use over a period of time. He also noted that both pain and lack of endurance significantly limited the Veteran's functional ability in his left ankle with repeated use over a period of time. The VA examiner was unable to describe the functional impact in terms of motion, stating that the Veteran would have to be present immediately after repetitive use over time for him to do so. Additional factors contributing to the Veteran's right and left ankle disabilities included instability of station, disturbance of locomotion, and interference with standing. Muscle strength testing was provided. There was no reduction in muscle strength in either ankle, nor was atrophy observed. The VA examiner determined that there was no ankylosis in either ankle. Ankle instability or dislocation was not suspected. The Veteran did not have, nor had he ever had, "shin splints," stress fractures, achilles tendonitis, achilles tendon rupture, or malunion of calcaneus (os calcis) or talus, nor had he ever had a talectomy. The Veteran reported that he constantly used ankle braces and a cane. Functioning of the Veteran's ankles was not so diminished that amputation with prosthesis would equally serve the Veteran. In January 2017, the Veteran was provided MRIs on his ankles at a private facility due to his severe ankle pain. On the right side, there was focal evidence for tendinitis at the distal attachment of the posterior tibialis tendon which was thickened and associated with edema. The radiologist noted a large amount of edema which tracked along the medial tendons of the ankle that was most likely related to the Veteran's tendonitis of the posterior tibialis. There was also edema and abnormal signal change associated with the anterior and posterior talofibular ligaments. All ligaments were intact. While this could reflect sprain, he found it most likely reflected stress/altered weight-bearing. There were also mild chondromalacic changes associated with the talar dome that were likely related to mild arthritic change at the ankle. On the left side, there was intense abnormal signal change identified at the distal attachment of the posterior tibialis tendon at its insertion on the navicular consistent with focal tendinitis at that site. There was a large amount of abnormal signal that was specifically associated with the anterior and posterior talofibular ligaments. These ligaments were intact. While this could reflect sprain, he found it most likely reflected stress/altered weight-bearing. There was soft tissue edema surrounding the left ankle joint. A January 2017 private treatment record documents the Veteran's complaints of pain (causing sleep deprivation), swelling, stiffness, weakness, giving way, and clicking or triggering of the bilateral ankles. His symptoms were aggravated by daily activities such as using stairs, motion, running, standing, and walking, and were relieved by elevation, pain medication, and rest. On physical examination, the private examiner noted that the Veteran's gait was antalgic. There was mild swelling in both ankles. There was tenderness on palpation of each ankle at the achilles tendon, peroneal tendon, and posterior tibial tendon. Post tibial pulses were normal. Muscle testing was normal. Anterior drawer testing showed that the ankles were stable. Active and passive range of motion were restricted in both ankles due to pain. A February 2017 treatment record from the same physician notes similar symptomatology. In February 2017, the same physician wrote an assessment of the Veteran's bilateral ankle disability. He indicated that the Veteran continued to suffer from chronic bilateral foot and ankle pain, instability, swelling of the ankles, edema, antalgic gait, and limited range of motion due to his posterior tibial tendon syndrome and adult acquired flatfoot conditions. The Veteran's use of orthotic shoe inserts, ankle braces, oral steroids, and steroid injections had not provided any significant relief of these conditions. Following a review of all relevant lay and medical evidence, the Board finds that the evidence persuasively supports initial 20 percent disability ratings for the Veteran's service-connected posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right and left ankles based on limitation of motion under Diagnostic Code 5271. The Board is convinced that the Veteran's limitation of motion of his ankles meets the definition of marked as contemplated under the rating criteria in effect prior to February 7, 2021. His range of motion in both ankles has been extremely restricted throughout the appeal period due to severe pain and he has at times been unable to perform range of motion testing at all due to his disabilities. This limitation of the Veteran's ankle motion has not improved with use of oral pain medications, steroid injections, or orthotics, and adversely impacts the Veteran's daily mobility, limiting both his recreational activities and activities of daily living. The Board is cognizant that the Veteran does not meet the range of motion requirements under the new regulation. As previously noted, however, the Board must consider both sets of criteria and apply which version is more favorable, and the Board must apply the 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; which it was. Therefore, initial disability ratings of 20 percent, but no higher, are granted for both of the Veteran's ankle disabilities based on limitation of motion, pursuant to Diagnostic Code 5271. This is the maximum schedular rating available under Diagnostic Code 5271. The only Diagnostic Code governing ankle disabilities which provides for a disability rating higher than 20 percent is Diagnostic Code 5270 which governs ankylosis. 38 C.F.R. § 4.71a. However, the Veteran has never asserted he has had ankylosis of either ankle during the appeal period. While the record indicates that he at one time needed a wheelchair to go into a hospital due to bilateral ankle pain, the overwhelming majority of the medical evidence demonstrates that the Veteran retains some mobility in both ankles, albeit limited, with use of braces and canes; thus, he does not manifest ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore, the award of even higher disability ratings under Diagnostic Code 5270 are not warranted. However, the Board finds that separate 10 percent disability ratings for mild instability in the Veteran's ankles are warranted. The criteria for rating ankle disabilities does not include a code specifically addressing ankle instability. As such, the Board finds that in this case, a separate rating by analogy can be awarded under Diagnostic Code 5262. Diagnostic Code 5262 provides schedular ratings for impairment of the tibia and fibula. Malunion with a slight ankle disability warrants a 10 percent rating; malunion with a moderate ankle disability warrants a 20 percent rating; and malunion with a marked ankle disability warrants a 30 percent rating. Evidence of nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Here, the evidence demonstrates reports of bilateral ankle instability and giving way, as well as the Veteran's constant use of ankle braces. Given this evidence, the Board finds that the record most closely approximates slight instability of the ankles, warranting 10 percent disability ratings by analogy under Diagnostic Code 5262. However, 20 percent disability ratings are not warranted as the evidence does not support moderate ankle instability. VA examiners routinely did not suspect the presence of ankle instability and concluded laxity testing was not necessary. Additionally, when private examiners performed instability testing, such as the anterior drawer test, both ankles were assessed as stable. The Board finds that the record in its totality does not support a finding of moderate instability of either ankle. Thus, separate 10 percent disability ratings, but no higher, for instability of the right and left ankles are warranted. The Board now turns to the appropriate initial rating for the Veteran's bilateral flatfoot disability. Following a review of all relevant lay and medical evidence, the Board finds that the evidence persuasively supports an initial 50 percent disability rating. In this regard, the evidence reflects that the Veteran suffered from severe pain, excessive pronation, swelling and tenderness in his bilateral feet, not improved by orthopedic shoes or appliances, or in this case, by any non-surgical treatment, throughout the appellate period. Resolving all reasonable doubt in the Veteran's favor, the Board finds that his symptomatology closely approximates that of a 50 percent disability rating. The Board is cognizant that, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). When, as in this case, the Veteran has been assigned the maximum disability rating based on range of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Therefore, the rating criteria do not provide a basis to assign an increased disability rating beyond 50 percent under Diagnostic Code 5276. In summary, initial 20 percent disability ratings for posterior tibial tendonitis and osteoarthritis with sinus tarsi syndrome of the right and left ankles based on limitation of motion are granted, as are separate 10 percent disability ratings for right and left ankle instability. An initial 50 percent disability rating for the Veteran's bilateral flatfoot disability is also granted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.