Citation Nr: 0842388 Decision Date: 12/09/08 Archive Date: 12/17/08 DOCKET NO. 03-29 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for residuals of a cold injury. 2. Entitlement to a rating in excess of 10 percent for left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E.B. Joyner, Counsel INTRODUCTION The veteran served on active duty from May 1955 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied service connection for residuals of a cold weather injury. This case also comes to the Board on appeal from a May 2003 rating decision which denied service connection for a right ankle disability and denied an increase in a 10 percent rating for a service- connected left ankle disability. When the case was last before the Board in May 2006, the issues on the title page as well as the issue of entitlement to service connection for a right ankle disability were remanded for additional development. The Board notes that in a July 2008 rating decision, service connection for a right ankle disability was granted. As this is a full grant of benefits sought on appeal, this issue is no longer before the Board. The issue of entitlement to service connection for residuals of a cold injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's left ankle disability is manifested by no more than moderate limitation of motion. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for left ankle disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, in a letter dated in May 2006, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claim for an increased rating, as well as what information and evidence must be submitted by the veteran, and what information and evidence will be obtained by VA. The letter advised the veteran of the type of evidence needed to establish a disability rating, including evidence addressing the impact of his condition on employment and the severity and duration of his symptoms. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). This letter also advised the veteran of the evidence needed to establish an effective date. The case was last readjudicated in July 2008. Id. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service treatment records, post-service medical records, VA examination reports, and photographs provided by the veteran. The veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The veteran was an active participant in the claims process by submitting photographs, authorization forms for medical treatment, and statements addressing his symptoms. He described the functional impairment caused by his disability in statements and to the VA examiners. The veteran was provided with the rating criteria for evaluating his ankle disorder in the February 2004 statement of the case. Thus, the veteran was provided with a meaningful opportunity to participate in the claims process and has done so. In this regard, his actions in this case reflect his understanding of the need for evidence reflecting the level of disability of his ankle condition. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the veteran. See Sanders, 487 F.3d 881. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2008); see also 38 C.F.R. §§ 4.45, 4.59 (2008). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran's left ankle disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under that code, moderate limitation of motion of an ankle warrants a 10 percent evaluation; while marked limitation of motion of an ankle warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The medical evidence of record shows that a September 2002 VA podiatry surgery note indicates that the veteran's left ankle was tender along the medial and lateral joint line. The diagnosis was degenerative joint disease mid tarsal area, ankle joint, and residual left ankle instability. A January 2003 VA progress note indicates that the left foot and ankle were painful on palpation to the lateral and deltoid ligaments of the ankle. There was pain on the range of motion of the ankle. The ankle displayed excessive lateral and medial range of motion. X-ray studies of the left ankle revealed a slight narrowing of the talotibial joint space and some spurring of the medial malleolus. Additionally, there was some roughening of the first cuneiform bone and there was a bone spur on the ventral aspect of the left os calcis. The conclusion was degenerative arthritic changes in bones of both feet, with bone spurs on the ventral aspect of both os calcis. An April 2003 VA podiatry surgery note indicates that the veteran reported that his ankles had been feeling much better since wearing orthotics. His only complaint was with regard to arch pain. A January 2004 VA podiatry surgery note states that there was crepitation on range of motion of the left ankle. The diagnosis was osteoarthritis. A February 2005 VA outpatient note states that the veteran was seen for complaints of left knee and ankle pain after a fall that morning. He claimed to have stumbled and fallen, landing on his left knee and ankle. On examination his left ankle was cool and not discolored. The left ankle exhibited normal range of motion. There was no effusion or tenderness. A January 2006 VA outpatient note indicates that the veteran was seen for a fall when he slipped on ice and banged his left knee and foot. X-ray study of the left foot revealed no acute fracture, but showed degenerative changes in the first MP joint, questionable changes of gout, and a small calcaneal plantar spur. A June 2006 VA podiatry surgery note states that the veteran was seen for a follow-up visit for pes planus and degenerative joint disease. He continued to wear custom molded orthotics and shoe gear. He complained of pain and burning in his toes secondary to peripheral neuropathy. Examination revealed palpable distal pedal pulses, bilaterally. There was a lack of sense to monofilament to plantar midfoot, bilaterally. The interdigital plantar dorsal surfaces were clear. There was significant pes planus deformity with midfoot degenerative joint disease and medial column collapse. The April 2008 VA examination report notes that the veteran complained of progressive deformity of his left foot and ankle over the years, resulting in a severe flatfoot with depression of both longitudinal as well as transverse metatarsal arch. He has insert orthotics and custom shoes, which have proved beneficial. He complained of numbness and tingling in the toes of both feet, as well as stiffness in the toes of both feet. He has burning pain in both feet and his symptoms are much more severe during cold weather. He reported using a cane to walk for even short distances. He has not developed an ulceration or callus formation despite the markedly deformed posture of his left foot. He had difficulty balancing while walking barefooted. X-rays of the left foot and ankle show severely advanced changes of degenerative arthritis involving his midfoot, and narrowing and spur formation of the tibiotalar joint of the left ankle. On examination he had extremely advanced severe hyperpronation of his left foot and ankle with valgus of the left heel of 35 degrees. His hyperpronation is flexible and appears to be related both to his midfoot degenerative arthritis as well as a valgus deformity of his left ankle. Diagnoses included posttraumatic arthritis of the left ankle, severely advanced degenerative arthritis of the left midfoot with flexible hyperpronation deformity, gouty arthritis, podagra of the left foot, and hammertoe deformities of both feet. At the July 2008 VA examination the veteran had mild limitation of motion of the left ankle in that he could only dorsiflex his left ankle to 10 degrees. Plantar flexion was normal. The VA examiner noted that there was objective evidence of uncomfortable ankle and subtalar motion. There was no swelling but the ankle was tender to palpation through the mid foot. There was no objective sign of weakness or instability. The examiner noted that there was significant osseous prominence, degenerative joint disease, and osteophyte production about the midtarsal joint medially on both feet. The examiner opined that it is less likely than not that his ankle sprain in service caused his current problems with numbness and pain in both feet. The examiner further opined that there is no correlation between the veteran's mild to moderate ankle sprain and the significant osteophyte production and degenerative joint disease about his midfoot. The examiner stated that an ankle sprain would not cause bilateral hammertoes. The VA examiner attributed general numbness and pain to the veteran's peripheral neuropathy rather than the residuals of the ankle sprain. The examiner concluded that although there is limitation of motion of the left ankle (dorsiflexion) compared to the right, it appears that the general numbness and pain are more related to his diagnosis of peripheral neuropathy than to residuals from an ankle sprain. The Board recognizes that the veteran has several diagnoses with respect to his left foot and ankle. In this regard, however, the July 2008 VA examiner specifically indicated that the veteran's left ankle disability did not cause any of his other left foot problems. In this regard, the use of manifestations not resulting from service-connected disability is to be avoided. 38 C.F.R. § 4.14 (2008). Regarding range of motion testing, the medical evidence reveals some limitation of dorsiflexion of the veteran's left ankle. However, plantar flexion is normal. Taking into account the lack of weakness, instability, or swelling, the medical evidence demonstrates that the veteran's limitation of motion does not more nearly approximate the marked limitation of motion required for a higher evaluation than the moderate level contemplated by the assigned evaluation. The Board has also considered whether a higher rating for this disability is warranted under any other diagnostic code but has found none which would provide a higher evaluation based upon the service-connected symptoms. The Board has also determined that a staged rating is not warranted for this disability because it has not been more than 10 percent disabling at any time during the period of the claim. In addition, the Board has considered the benefit-of-the- doubt doctrine, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to a rating in excess of 10 percent for left ankle disability is denied. REMAND The veteran contends that he incurred a cold injury during military service in Korea. He served on active duty from May 1955 to March 1957. In the May 2006 remand, the Board requested that the veteran's service personnel records be obtained to determine whether he was stationed in Korea during service. Although the AMC requested the veteran's service personnel records, which were found to have been destroyed in the accidental fire at the National Personnel Records Center in 1973, the AMC undertook no additional development action in order to ascertain whether the veteran's unit was stationed in Korea at any time during his active service. In this regard, the Board notes that the veteran's DD-214 indicates that he had approximately 16 months of foreign service. Additionally, a December 1958 private medical record indicates that the veteran reported medical complaints relating to his service in Korea. As the veteran's contention that he served in Korea has been consistent since the year after his discharge, additional effort to confirm such service should be undertaken. The veteran has reported that he served in Korea with the 44th Ordinance Company. His service treatment records show the veteran with that company when receiving treatment by the 121st Medical Detachment, APO 358 in December 1955, April 1956, and January 1957 (for conditions unrelated to his current claim). Thus, efforts should be made through official sources, including the U. S. Army and Joint Services Records Research Center (JSRRC) to attempt to verify that the 44th Ordinance Company and/or the 121st Medical detachment, APO 358 were located in Korea during winter months between a period between December 1955 and January 1957. If, after appropriate development, Korean service is not corroborated, a formal finding should be made that further development action in this regard would be futile, and the veteran so notified. If, and only if, the 44th Ordinance Company or the 121st Medical Detachment APO 358 were located in Korea during winter months between December 1955 and January 1957, then a VA neurology examination should be scheduled to determine whether he suffers from cold injury residuals to his feet. Accordingly, the case is REMANDED for the following action: 1. Undertake all appropriate development action through official sources, including the U. S. Army and Joint Services Records Research Center (JSRRC), to attempt to verify that the 44th Ordinance Company and/or the 121st Medical Detachment, APO 358 were located in Korea during winter months of the period between December 1955 and January 1957. If no records or corroboration of the veteran's claimed Korean service is obtained, the veteran should be notified of the inability to obtain proof of his Korean service, and he should be advised to submit alternative forms of proof that he served in Korea during the winter months. 2. If, and only if, the 44th Ordinance Company and/or the 121st Medical Detachment, APO 358 were located in Korea during winter months between December 1955 and January 1957, then a VA neurology examination should be scheduled to determine whether he suffers from cold injury residuals to his feet. The claims folder must be provided to the VA examiner for review in conjunction with the examination. 3. Thereafter, the RO/AMC should readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs