Citation Nr: 0809854 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 06-16 468 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 10 percent for a right ankle disability. ATTORNEY FOR THE BOARD J. D. Watson, Associate Counsel INTRODUCTION The veteran had active duty for training from July 1993 to August 1993 and in July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 RO decision, which granted service connection for a right ankle disability and assigned a rating of 10 percent. It is noted that the claim regarding service connection for a right knee disability is not before the Board as the veteran did not perfect his appeal. FINDING OF FACT The veteran's right ankle disability is manifested by no more than moderate limitation of motion; there is no ankylosis or additional limitation of motion based on pain, fatigue, weakness, lack of endurance, or incoordination. CONCLUSION OF LAW The criteria for a disability rating greater than 10 percent for a right ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.69, 4.71, Diagnostic Code (DC) 5271 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & West Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to the initial adjudication of the veteran's claim, a letter dated in December 2003 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2007); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim, and the aforementioned letter instructed him to provide any relevant evidence in his possession. The U.S. Court of Appeals for Veterans Claims (Court) recently held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the veteran's claim for service connection for a right ankle disability was granted, and a disability rating and effective dates were assigned in a December 2004 decision of the RO. VA's duty to notify under 38 U.S.C.A. § 5103(a) is discharged. See Sutton v. Nicholson, 20 Vet.App. 419 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records are in the file. There is no evidence that the veteran has received VA treatment for his disability. In addition, private medical records identified by the veteran have been obtained, to the extent possible. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). There is no indication in the record that any additional evidence is available and not part of the claims file. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). In this case, the RO provided the veteran with an appropriate VA contract examination in October 2004, which is thorough and consistent with other medical records. There is no objective evidence indicating that there has been any material change in the severity of the veteran's condition since he was last examined. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. There is no rule as to how current an examination must be, and the Board concludes the examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating The veteran claims that his right ankle disability warrants an initial rating in excess of 10 percent. For the reasons that follow, the Board concludes that an increased rating is not warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19th, 2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The veteran is currently rated at 10 percent for his right ankle disability under DC 5271. DC 5271 evaluates ankle disability based on limitation of motion, with moderate limitation of motion of the ankle warranting a 10 percent evaluation and marked limitation warranting a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5271. The Board notes that normal range of motion for the ankle is from 0 to 20 degrees of dorsiflexion and from 0 to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II. In this case, the only recent medical evidence of record pertinent to the veteran's right ankle disability consists of an October 2004 VA contract examination. There are other records on file, but these relate to the veteran's condition in the mid 1990s and are not probative as to his current condition. At that examination, the veteran complained of right ankle tightness and swelling with limited physical ability that is progressively worsening over time. Upon examination, the veteran's posture and gait were normal. The examiner noted slight crepitus, with dorsiflexion of 0 degrees and plantar flexion from 0 to 45 degrees in both ankles. There was no additional limitation of motion based on pain, fatigue, weakness, lack of endurance, or incoordination. There was also no deformity or ankylosis. X-rays of the veteran's right ankle revealed no fractures or osseous abnormalities, with well maintained joint spaces and without ligamentous laxity or swelling. The examiner concluded that the veteran's right ankle was normal, with very slight anterolateral crepitus. In sum, the medical evidence shows that the veteran's right ankle disability manifests no more than moderate limitation of motion in dorsiflexion and with no limitation of motion in plantar flexion. In fact, both of the veteran's ankles exhibited the same range of motion. In addition, x-rays showed that the veteran's right ankle was normal. Consequently, the veteran does not meet the criteria for a 20 percent disability rating under DC 5271. See 38 C.F.R. § 4.71a, DC 5271. The Board has reviewed the remaining records and can find no other contemporary and directly relevant assessment of the veteran's right ankle disability. As the most recent medical evidence indicates that the veteran's right ankle manifests no more than moderate limitation of motion, the Board concludes that a higher rating under DC 5271 is not warranted. See 38 C.F.R. § 4.71a, DC 5271. The Board notes that the evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board notes that VA contract examination from October 2004 showed that the veteran had no additional limitation of motion due to pain, fatigue, weakness, lack of endurance, or incoordination. As a consequence, the Board concludes that no higher rating is required under DeLuca. See Id. The Board has also considered the applicability of additional diagnostic codes. DC 5270 and 5272 provide rating criteria for ankylosis of the ankle; DC 5273 provides rating criteria for malunion of the os calcis or astragalus; and DC 5274 provides rating criteria for an astragalectomy. 38 C.F.R. § 4.71a, DC 5270-5274. As the medical evidence of record shows that the veteran does not have ankylosis or malunion and has not had an astragalectomy, these codes are not for application in this case. In addition, the Board has considered the rule of Hart, supra. The evidence does not show that the veteran's symptoms have risen to the level for a rating in excess of 10 percent at any time during the period on appeal. As such, the Board concludes that staged ratings are inapplicable. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an increased rating. See Gilbert, supra. ORDER Entitlement to an initial rating in excess of 10 percent for a right ankle disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs