Citation Nr: 0810051 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 04-19 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial rating in excess of 10 percent for residuals of a right ankle sprain, to include arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The veteran served on active duty from January 1989 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for residuals of a right ankle sprain and assigned a 10 percent disability rating. A timely appeal was noted with respect to that rating. The Board notes that the veteran requested a hearing before the Board in April 2004. However, in correspondence dated May 2004, he withdrew that request. Thus, the matter has been certified to the Board for decision. FINDINGS OF FACT 1. The veteran's service connected residuals of a right ankle sprain with arthritis are manifested by dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 2. There is no evidence of ankylosis of the right ankle. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a right ankle sprain with arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In correspondence dated January 2007, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claim for a higher initial evaluation; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. In January 2007, the RO also notified the veteran of the process by which initial disability ratings and effective dates are established. The veteran advised in correspondence dated April 2006 and January 2007 that he had nothing further to submit. The Board notes that fully satisfactory notice was not delivered until after the claim was originally adjudicated. However, the RO subsequently readjudicated the claim based on all the evidence in June 2007. The veteran was able to participate effectively in the processing of his claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his claim. The duties to notify and assist have been met. Increased Initial Evaluation Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. Because this appeal ensues from the veteran's disagreement with the evaluation assigned in connection with the original grant of service connection, the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). Traumatic arthritis substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010. Under DC 5003, degenerative arthritis or osteoarthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Disability evaluation for limitation of motion of the ankle is found under Diagnostic Code 5271. Diagnostic Code 5271 provides a 10 percent disability evaluation for "moderate" limited motion of an ankle and a maximum evaluation of 20 percent for "marked" limited motion. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a. Functional loss, which is the inability to perform the normal working movements of the body within normal limits, specifically due to pain and weakness on motion, also is to be considered when ascertaining the severity of musculoskeletal disabilities. 38 C.F.R. §§ 4.40, 4.45 and 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Analysis On review, the Board finds an evaluation in excess of 10 percent for residuals of a right ankle sprain with arthritis is not warranted. On VA examination in May 2003, no limitation of motion of the right ankle was shown. Ankle dorsiflexion was 20 degrees and plantar flexion was 45 degrees. Since May 2003, no evidence has been submitted that shows an increase in the severity of the veteran's symptoms. As there was normal range of motion on VA examination and no evidence of an increase in severity since then, entitlement to an increased rating on the basis of limitation of motion of the ankle has not been shown. 38 C.F.R. § 4.71a, DC 5271. The veteran is receiving the maximum allowable, 10 percent, under DC 5010-5003 for traumatic arthritis of the right ankle. Thus, entitlement to an increased rating on the basis of traumatic arthritis is not warranted. 38 C.F.R. § 4.71a , DC 5010-5003. There is no basis for a rating in excess of 10 percent based on limitation of motion due to any functional loss as the veteran is receiving the maximum schedular rating for limitation of motion of the ankle. See Johnston v. Brown, 10 Vet.App. 80 (1997). Higher alternative ratings are offered under other diagnostic codes, such as DCs 5270 and 5272. However, the medical evidence does not demonstrate ankylosis of ankle or subastragalar or tarsal joint. Nor is an increased rating available under DC 5273, as the evidence does not show malunion of the os calcis or astralagus. The medical evaluations of the veteran's ankle do not indicate astragalectomy under DC 5274; thus, entitlement to an increased rating under that DC has not been shown. The Board must address referral to the Chief Benefits Director or the Director, Compensation and Pension Service, under 38 C.F.R.§ 3.321 (b)(1) only where circumstances are presented which the Director might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The evidence of record does not demonstrate that the veteran's service-connected ankle disorder presents an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards. Consequently, the Board concludes that a remand for consideration of the assignment of an extraschedular rating is not warranted in this case. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); see also Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). The Board has also considered whether higher ratings might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). However, the weight of the credible evidence demonstrates that the manifestations of the veteran's service connected ankle disorder has warranted no more than a 10 percent rating since March 2002, the effective date of the grant of service connection. As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher initial evaluation for service connected residuals of a right ankle sprain with arthritis. Thus, the preponderance of the evidence is against the veteran's increased initial evaluation claim. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for residuals of a right ankle sprain, to include arthritis, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs