Citation Nr: 0810749 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-31 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased disability rating for service- connected left fibular fracture residuals, status post excision of synostosis, currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION The veteran served on active duty from December 1966 to November 1969. Service in Vietnam is indicated by the evidence of record. Procedural history Service connection for left fibula fracture residuals was granted in a February 1977 VA rating decision. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision rendered by the Department of Veterans Affairs (VA) Regional Office in Boston, Massachusetts (the RO) in August 2003. In its August 2003 rating decision, the RO denied the veteran's claim for an increased disability rating for his service-connected left fibula fracture residuals, then rated as 20 percent disabling. A personal hearing was held before the undersigned Veterans Law Judge at the RO in September 2005. A transcript of that hearing has been associated with the veteran's VA claims file. By a January 2006 action, the Board remanded this case to the VA Appeals Management Center (AMC) for additional development. The requested development has been completed. By a September 2007 rating decision, the AMC granted an increased disability rating of 30 percent for the veteran's service connected left fibula fracture residuals. The veteran has not indicated satisfaction with this rating. See AB v. Brown, 6 Vet. App. 35, 38 (1993) [when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated]. The case has been returned to the Board for further consideration of the appeal. Matters not on appeal By a July 2004 rating decision, the RO granted service connection for diabetes mellitus type II with a 10 percent disability rating assigned. By an October 2004 rating decision, the RO continued the 10 percent disability rating for diabetes mellitus type II, and granted service connection for post-traumatic stress disorder with a 50 percent disability rating assigned. By a September 2007 rating decision, the RO also granted service connection for left knee arthritis with a disability rating of 20 percent assigned. To the Board's knowledge, the veteran has not disagreed with those decisions. Those matters are therefore not in appellate status and will be addressed no further herein. FINDING OF FACT The veteran's service-connected residuals of left fibular fracture, status post excision of synostosis, are manifested by a reoccurrence of synostosis of the distal tibia and fibula, limitation of plantar flexion in the left ankle with increasing complaints of pain on repetitive testing, daily flare-ups of pain running from his left ankle to the left thigh, the need to use a cane and an ankle-fixation orthotic, and functional limitations in performing activities that require any standing or walking for any length of time. CONCLUSION OF LAW The criteria for a 40 percent rating for left fibular fracture residuals, status post excision of synostosis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks an increased disability rating for his service-connected fracture of left fibula residuals, which is currently evaluated at 30 percent disabling. In the interest of clarity, the Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall considerations As was alluded to in the Introduction, the Board remanded this case in January 2006. In essence, the Board instructed the agency of original jurisdiction (AOJ) to schedule the veteran for a another VA physical examination to ascertain all current residuals and impairment resulting from the veteran's left fibula fracture, and the severity thereof. The AOJ was then to readjudicate the claims. Updated treatment records from the Boston VAMC were subsequently associated with the claims folder, and the requested VA examination was completed in October 2006. Finally, the AMC readjudicated the claim in September 2007, resulting in the current 30 percent rating as well as a separate 20 percent rating for left knee arthritis. Thus, all of the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issue has proceeded in accordance with the provisions of the law and regulations. Standard of review In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal. The Board observes that the veteran was informed of the relevant law and regulations pertaining to his increased rating claim in a letter from the RO dated in June 2003, which informed him that "the evidence must show that your service-connected condition has gotten worse." Crucially, the veteran was informed of VA's duty to assist him in the development of his claim and advised of the provisions relating to the VCAA in the above-referenced June 2003 letter, along with letters from the AMC [issued subsequent to the January 2006 remand] dated in March 2006, April 2006 and September 2006. Specifically, the veteran was advised in the June 2003, March 2006, and April 2006, letters that VA is responsible for obtaining records from any Federal agency, to include military records, outpatient records from VA treatment facilities and records from the Social Security Administration. The June 2003 and September 2006 letters further indicated that VA examinations were being scheduled to adjudicate his claims [such were accomplished in July 2003 and October 2006]. With respect to private treatment records, the June 2003, March 2006, and April 2006 letters informed the veteran that VA would make reasonable efforts to obtain relevant private records. Copies of VA Form 21- 4142, Authorization and Consent to Release Information, were included with the letters, and the veteran was asked to complete this release for each private healthcare provider so that VA could obtain these records on his behalf. The June 2003, March 2006, and April 2006 letters further emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure that we receive all requested records that are not in the possession of a Federal department or agency" [Emphasis as in original]. The June 2003 VCAA letter also specifically requested of the veteran: "Send any treatment records pertinent to your claimed conditions(s), especially those that are recent (within the last 12 months)." The March 2006 and April 2006 letters further advised the veteran: "If there is any other evidence or information that has not been previously been submitted, please let us know. If you have any evidence in your possession that pertains to your claim[s], please send it to us." This request complies with the "give us everything you've got" requirement contained in 38 C.F.R. § 3.159 (b) in that the RO informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. The veteran was not provided complete notice of the VCAA prior to the initial adjudication of his claim, which was by rating decision dated in August 2003. The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO. Crucially, the veteran was provided with additional VCAA notice through the March and April 2006 VCAA letters and his claim was readjudicated in the September 2007 SSOC, after he was provided with the opportunity to submit evidence and argument in support of his claim and to respond to the VA notice. Thus, any VCAA notice deficiency has been rectified, and there is no prejudice to the veteran in proceeding to consider his claims on the merits. The veteran has pointed to no prejudice resulting from the timing of the VCAA notice. Finally, there have been two significant Court decisions concerning the VCAA. In the first, Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a claim is comprised of five elements, the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in the September 2006 letter from the AMC, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the September 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. Accordingly, the veteran has received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. The Board has also considered the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. The Board finds that the June 2003, March 2006, and April 2006 letters to the veteran specifically advised him that an increased disability rating would require a showing that the veteran's condition had worsened. In addition, the letters invited evidence that would demonstrate limitations in the veteran's daily life and work, such as "a statement from your doctor, containing the physical and clinical findings, the results of laboratory tests or x-rays, and the dates of examinations and tests. You may also submit statements from other individuals who are able to describe from their knowledge and personal observations in what manner your disability has become worse." The Board notes that the VCAA letters of record did not contain notice of the specific schedular criteria or notify the veteran as to the use of diagnostic codes. The veteran was notified of applicable schedular criteria in the August 2004 SOC and the September 2007 SSOC. It is also apparent from the record that the veteran had actual notice of the applicable criteria. The veteran and his representative specifically went over applicable schedular criteria during his Travel Board hearing. See the September 2005 hearing transcript. It is therefore clear that the veteran was aware of the applicable schedular standards. Accordingly, due to the content of the notice given and the veteran's actual knowledge, the Board finds that the veteran has received appropriate VCAA notice for his increased rating claims as contemplated by the Court in Vazquez-Flores. The Board further notes that the veteran's representative has not alleged that the veteran has received inadequate VCAA notice. The veteran is obviously aware of what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, the RO has obtained reports of VA and private medical treatment of the veteran. He was also afforded VA examinations in July 2003 and October 2006. The reports of these examinations reflect that the examiners reviewed the veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has been ably represented by his service organization, which provided argument on his behalf as recently as February 2008. As detailed in the Introduction, the veteran testified before the undersigned at the Boston RO in September 2005. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. Relevant law and regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2007). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Assignment of diagnostic code The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 5262. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Diagnostic Code 5262 is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue, impairment of the tibia and fibula, but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. An x-ray study of the left ankle done in January 2006 showed marked deformity of the lower portion of the left fibula, which was fused to the lateral aspect of the distal tibia. The October 2006 VA examiner noted that the veteran's left ankle appeared to be nearly completely fused, permitting only 25 degrees plantar flexion at maximal effort. [Normal plantar flexion of the ankle is from 0 to 45 degrees; see 38 C.F.R. § 4.71, Plate II.] Because recent medical evidence indicates that the veteran's left ankle is immobile or nearly so, the Board has considered whether Diagnostic Code 4270, ankylosis of the ankle, should be applied. In order to warrant a 40 percent disability rating under Diagnostic Code 5270, ankylosis in plantar flexion at more than 40 degrees is required. Here, although ankle motion is limited, there does not appear to be true ankylosis. Ankylosis is the "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Moreover, even assuming that limitation of plantar flexion may be considered to be ankylosis, the 25 degree ankylosis in plantar flexion would warrant only a 20 percent disability rating. There is also no evidence of the other criteria for the assignment of a 40 percent rating, ankylosis in dorsiflexion of more than 10 degrees, or ankylosis with abduction, adduction, inversion or eversion deformity. Thus, use of Diagnostic Code 5270 would not avail the veteran. Accordingly, the Board concludes that the veteran is most appropriately rated under Diagnostic Code 5262. The veteran and his representative have not contended otherwise Schedular criteria The RO has awarded a 30 percent disability rating pursuant to Diagnostic Code 5262 for malunion of the tibia and fibula with marked knee or ankle disability. The next, and highest, available disability rating under Diagnostic Code 5262 is 40 percent, based on nonunion of the tibia and fibula with loose motion, requiring a brace. See 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2007). Analysis A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2007); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The remote history of the veteran service-connected disability indicates that he fractured his left distal fibula in 1969, and in 1986 he underwent an osteotomy of the tibia and fibula with exostectomy and debridement. Since the veteran has been recently awarded a 30 percent disability rating under Diagnostic Code 5262 by the agency of original jurisdiction (AOJ), the Board's responsibility is to determine whether a 40 percent rating is warranted. In particular, the Board must determine whether there exists or approximates loose leg motion requiring use of a brace. In so determining, the Board is mindful that the AOJ has separately rated the veteran's left knee arthritis; assignment of additional disability based on such symptoms would amount to unauthorized pyramiding. See 38 C.F.R. § 4.14 (2005) [the evaluation of the same disability under various diagnoses is to be avoided]. During a July 2003 examination, the examiner observed that the veteran had normal posture and gait; he did not use any device; and examination for the fibula was normal, there was no nonunion or malunion. X-rays of the left leg revealed mild to moderate deformities in both distal tibia and fibula secondary to the old healed fractures, and old ununited avulsion fractures and mild degenerative osteoarthritic changes of the talotibial joint with minimal joint narrowing and small marginal hypertrophic spur formations. The examiner diagnosed fracture of the left fibula, status post excision of synostosis; degenerative osteoarthritic changes; minimal joint narrowing; and hypertrophic and plantar calcaneal spurs. At the October 2006 VA examination which was scheduled pursuant to the Board's remand instructions, the veteran reported that he used a cane all the time. He also used an ankle-fixation orthotic with a rigid fixed external block permitting no motion at the ankle joint, as well as an elastic patellar cutout non-hinged external support for his left knee. The examiner observed that the veteran walked with a marked limp favoring his left lower extremity and he was using a cane. His left ankle was maintained in a fixed neutral position with a locked externally hinged ankle- fixation orthotic, and he also wore a slip-on elasticized patellar cutout Velcro knee support without hinges. The examiner noted that evaluation of the left ankle was consistent with an advanced degree of post-traumatic arthritis, resulting in loss of hyperextension and capability of only 0 to 25 degrees plantar flexion on maximal effort and with increasing complaints of pain and fatigue with repetitive range of motion testing. In essence, the medical evidence indicates that the veteran's service-connected left ankle fracture has worsened in recent years. The October 2006 VA examiner's conclusions were congruent with the report of a May 2004 examination by an orthopedic resident, to include x-rays showing moderate to severe degenerative changes of the ankle joint. Although surgery was evidently considered, the veteran's left ankle was immobilized with an orthotics device. An x-ray study of the left ankle done in January 2006 showed marked deformity of the lower portion of the left fibula, which was fused to the lateral aspect of the distal tibia, with a narrow tibiotalar joint and a large calcaneal spur. The recent medical evidence indicates that the veteran has a severe disability arising from his service-connected left fibular fracture. The veteran evidently uses both a cane and a locked externally hinged ankle-fixation orthotic. The examiner observed that the veteran's left ankle appeared to be nearly completely fused. While these findings clearly support the RO's recent award of a 30 percent disability rating for malunion of the tibia and fibula with marked ankle disability pursuant to Diagnostic Code 5262, the Board believes that the veteran's symptoms more closely approximate the criteria for a 40 percent disability rating pursuant to Diagnostic Code 5262. See 38 C.F.R. § 4.7 (2007) [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 required for that rating]. While there is no evidence of nonunion of the tibia and fibula, x-ray studies show significant left ankle deformity. The Board finds it significant that the veteran, after having one surgery to correct synostosis of the tibia and fibula in 1986, currently has reoccurrence of synostosis of the distal tibia and fibula. He is required to use a cane and an ankle- fixation orthotic. He has functional disability that has interfered with activities of daily living that require standing or walking for any extended period of time. Therefore, the Board finds that the criteria for a rating of 40 percent have been met. See 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2007). DeLuca considerations The Court has held that 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 (2007) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2007). See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Court has held that where a diagnostic code is not predicated on limitation of range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. Therefore, since Diagnostic Code 5262 is not predicated on limitation of range of motion, but whether there is malunion or nonunion of the tibia and fibula, DeLuca considerations are not for application. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Board additionally notes that it has awarded the maximum 40 percent disability rating pursuant to Diagnostic Code 5262. In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available, as here it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. Esteban considerations Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2007); see also Esteban v. Brown, 6 Vet. App. 259, 261(1994). In the present case, as noted above, the RO has granted the veteran a 20 percent disability rating for arthritis of the left ankle. The VA examiner in October 2006 described a 10 centimeter surgical scar on the left lower leg and ankle which was 1.5 centimeter in its widest with at mid-scar level. The scar appeared to be stable, nontender, well healed, and was neither elevated nor depressed, and did not appear to be adherent to underlying soft tissue. There is no evidence that the scar caused or contributed to any limitation of motion of the ankle. Overall, the evidence indicates that the scar is de minimus. The July 2003 examiner merely noted the presence of scar on the left ankle, no pain, tenderness or functional limitations were noted. VA outpatient treatment records note the scar but do not indicate any pain or functional loss associated therewith. See, e.g., a VA outpatient treatment report dated may 13, 2004. The veteran himself has not contended that the scar presented any problems. Based on this record, the Board concludes that the evidence does not suggest that a separate disability pertaining to the scar is warranted under 38 C.F.R. § 4.118. Extraschedular rating consideration The Board will consider the question of whether an extraschedular rating is appropriate regarding the veteran's claim for increased rating for his service-connected residuals of left fibular fracture. See Bagwell v. Brown, 9 Vet. App. 157 (1966). The Board has not identified an exceptional or unusual disability picture due to the residuals of left fibula fracture, and neither has the veteran or his representative. The record does not show that the veteran has required any hospitalization for his left ankle disability, other than the corrective surgery he underwent in 1986. He reported to the VA examiner in October 2006 that his last full time job as a truck driver ended in 1996 via a buy-out so that he could retire. He evidently still does part-time irregular work as a truck driver. He is able to drive with his unaffected right foot. Therefore, there is no evidence that the veteran is occupationally impaired because of his service-connected left ankle disability beyond the level contemplated in the assigned 40 percent disability rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is a recognition that industrial capabilities are impaired]. For these reasons, the Board has determined that referral of the veteran's service-connected left ankle disability for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Hart considerations In Hart v. Mansfield, No. 05-2424 U.S. Vet.App. Nov. 19, 2007, the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. See 38 U.S.C.A. § 5110 (West 2002). The veteran's claim for an increased disability rating was filed on March 11, 2003. At that time, his left ankle disability was rated as 20 percent disabling. By its September 2007 decision, the RO increased the rating for the veteran's left ankle disability to 30 percent, effective from March 11, 2003. Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed, that is March 11, 2002. The medical evidence of record does not show any increase in the veteran's left ankle disability during the period between March 11, 2002 and the effective date of the 30 percent rating, March 11, 2003. Indeed, the veteran did not submit any evidence to support a finding that his left ankle disability was worse in the year preceding the date of his claim. Thus, the Board will not disturb the 20 percent rating which was in effect during that one year period. With respect to the now-assigned 40 percent rating, the Board believes that it was factually ascertainable that an increase in disability took place as of the May 14, 2004 VA x-ray, which according to the May 17, 2004 VA treating physician indicated "moderate to severe degenerative changes in the ankle joint with anterior osteophytes." In summary, the Board believes that a 20 percent disability rating should be assigned prior to March 11, 2003; a 30 percent rating assigned from March 11, 2003 to May 14, 2004; and a 40 percent disability rating assigned thereafter. Conclusion In conclusion, for reasons and bases expressed above, the Board has concluded that a 40 percent disability rating is warranted for the veteran's service connected left ankle fracture residuals, based upon the severity of the disability, which according to the medical evidence of record includes severe osteoarthritic changes as well as use of a brace and almost complete immobility. The benefit sought on appeal is granted. ORDER A rating of 40 percent is granted for service-connected residuals of left fibular fracture, status post synostosis, subject to the pertinent legal authority governing payments of monetary benefits. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs