Citation Nr: 0811379 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 04-44 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a higher initial rating for residuals of a right ankle sprain, evaluated as 30 percent disabling from September 25, 2003 to July 31, 2007, and as 20 percent disabling therefrom. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from April 1954 until April 1958. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. The veteran was initially granted service connection for residuals of a right ankle sprain in an April 2004 rating decision. He was assigned a 30 percent disability evaluation effective from September 25, 2003. He initiated an appeal as to the initial rating assignment with the submission of a notice of disagreement in August 2004. A statement of the case was issued in October 2004 and a VA Form 9 was received to perfect the appeal in December 2004. The Board observes that the veteran's disability evaluation was subsequently reduced to 20 percent, effective August 1, 2007, per a rating decision issued in May 2007. The veteran did not initiate an appeal as to the propriety of this reduction. Thus, the issue on appeal is whether the veteran is entitled to a higher initial rating for residuals of a right ankle sprain than the 30 percent disabling evaluation from September 25, 2003 to July 31, 2007, and 20 percent disabling therefrom. FINDINGS OF FACT 1. From September 25, 2003 until August 1, 2007, the veteran's residuals of a right ankle strain were manifested by complaints of pain and swelling; objectively, the competent findings reveal marked limitation of motion, with no showing of ankylosis. 2. From August 1, 2007, the veteran's residuals of a right ankle strain were manifested by complaints of pain, stiffness and swelling; objectively, the competent findings reveal marked limitation of motion, with no showing of ankylosis. CONCLUSIONS OF LAW 1. From September 25, 2003, to August 1, 2007, the criteria for entitlement to an evaluation in excess of 30 percent for residuals of right ankle strain have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5270, 5271 (2007). 2. From August 1, 2007, the criteria for entitlement to an evaluation in excess of 20 percent for residuals of a right ankle strain have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DCs 5270, 5271 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The Board has reviewed all of 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 extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. It is observed that the present appeal stems from an initial rating assignment. As such, the Board must consider the entire time period involved, and contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Service connection for residuals of sprain in the right ankle was initially granted in an April 2004 rating decision; at that time, a 30 percent evaluation was assigned under DCs 5271-5270, effective September 25, 2003. In a subsequent rating decision the veteran's disability evaluation was reduced to 20 percent, effective August 1, 2007, per a rating decision issued in May 2007. The veteran however contends that throughout the rating period his symptoms are of such severity as to warrant an increased rating. I. Entitlement to a rating in excess of 30 percent for residuals of a right ankle sprain from September 25, 2003 until August 1, 2007. During the period in question, the veteran is assigned a 30 percent rating for his residuals of a right ankle sprain pursuant to DC 5271-5270. DC 5271 affords a maximum benefit of 20 percent. Accordingly, that Code section cannot serve as a basis for an increased rating here. The Board now turns attention to DC 5270. Under that diagnostic code, a 30 percent rating applies for ankle ankylosis in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. In order to achieve the next-higher 40 percent rating under DC 5270, the evidence must demonstrate ankle ankylosis in plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or erversion deformity. The evidence of the record fails to support an evaluation in excess of 30 percent under DC 5270. Indeed, the evidence of record does not demonstrate a diagnosis of ankylosis of the right ankle. In fact, at two separate VA examinations, one in January 2006 and the other in April 2006, it was noted that ankylosis was not applicable to the veteran's disability. The Board has considered whether the veteran's disability picture is nevertheless comparable with a diagnosis of ankylosis. In this regard, it is noted that in evaluating musculoskeletal disabilities, the Board must consider additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Board has considered the subjective pain reported by the veteran at various VA examinations and also documented in various private treatment records. In this regard, at the VA examination in March 2004, the veteran complained of pain and swelling in his ankles with prolonged standing or walking. He reported that these symptoms had existed for many years. At an October 2005 VA medical visit the veteran reported his ankle pain as 10 out of 10 in intensity. At a March 2006 VA examination, the veteran reported that the pain in his right ankle had increased to the point where he was no longer ambulatory and had been using a scooter for the past three months. The veteran is competent to provide testimony as to observable symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the evidence of record shows that the veteran's reports of pain have been objectively noted. For example, VA examination in March 2004 indicated swelling and tenderness over the right ankle. Additionally, global tenderness of the right ankle was noted in a January 2006 VA examination report. Further, hypersensitivity and tenderness were noted in an April 2006 VA examination. The veteran arrived at his August 2006 VA examination in a motorized scooter and used a cane when not seated. Despite the complaints and findings of pain as noted above, the evidence does not establish additional functional impairment due to factors such as pain and weakness so as to enable a finding that the veteran's disability picture most nearly approximates the next-higher 40 percent evaluation under DC 5270. Indeed, while right ankle pain is shown, and while functional limitation is demonstrated by the veteran's use of a cane and motorized scooter, such pain and limitation are already contemplated by the 30 percent evaluation presently assigned during the period in question. The competent evidence simply fails to demonstrate that such pain and additional functional limitation have resulted in a disability picture comparable to ankylosis. Therefore, the next-higher 40 percent rating is not warranted. In reaching the above conclusion, it is noted that the veteran had 10 degrees of right ankle dorsiflexion and 20 degrees of right ankle plantar flexion upon VA examination in March 2004. Moreover, at his August 2006 VA examination, it was reported by the examiner that the veteran during the range of motion tests was "actively resisting ankle movement with the lower muscle groups." At this same examination the veteran exhibited dorsiflexion of 5 degrees in his right ankle and plantar flexion of 5 degrees. However, at the end of the examination the examiner noted that the veteran was able to "dorsiflex his ankle to 20 degrees when stepping down off the exam table and plantar flex his ankle to 45 degrees when putting on his sock and shoe." Additionally, the veteran exhibited no ankylosis, as documented in two VA examinations, January 2006 and April 2006. The Board finds that there are no other relevant diagnostic codes for consideration in evaluating the veteran's right ankle disability. In conclusion, there is no basis for an evaluation in excess of 30 percent for residuals of a right ankle sprain from September 25, 2003 until August 1, 2007. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Additionally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. II. Entitlement to a rating in excess of 20 percent for residuals of a right ankle sprain from August 1, 2007. During the period in question, the veteran is assigned a 20 percent rating for his residuals of a right ankle sprain pursuant to DC 5271-5270. Again, DC 5271 affords a maximum benefit of 20 percent. Accordingly, that Code section cannot serve as a basis for an increased rating here. The Board now turns attention to DC 5270. In order to achieve the next-higher 30 percent rating under that diagnostic code, the evidence must demonstrate ankle ankylosis in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. The evidence of the record fails to support an evaluation in excess of 20 percent under DC 5270. Indeed, the evidence does not contain any diagnosis of ankylosis during the period in question. In fact, at a VA examination in July 2007, it was noted that no ankylosis was present. The Board has considered whether the veteran's disability picture is nevertheless comparable with a diagnosis of ankylosis. Again, in evaluating musculoskeletal disabilities, the Board must consider additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). . The Board has considered the subjective pain reported by the veteran at VA examinations and also documented on various private treatment records. In this regard, at the VA examination in July 2007, the veteran reported pain at a level of 8-9 on a scale of 10. He additionally reported stiffness and swelling of his right ankle. The veteran is competent to provide testimony as to observable symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the evidence of record shows that the veteran's reports of pain have been objectively noted. For example, the VA examination report in July 2007 revealed right ankle tenderness and soft tissue swelling. Additionally, pain was noted with range of motion. However, there was no additional loss of motion with repetitive movement. Despite the complaints and findings of pain as noted above, the evidence does not establish additional functional impairment such as to enable a finding that the veteran's disability picture most nearly approximates the next-higher 30 percent evaluation under DC 5270. Indeed, while right ankle pain is shown, and while functional limitation is demonstrated, such pain and limitation are already contemplated by the 20 percent evaluation presently assigned during the period in question. The competent evidence simply fails to demonstrate that such pain and additional functional limitation have resulted in a disability picture comparable to ankylosis. Therefore, the next-higher 30 percent rating is not warranted. In conclusion, there is no basis for an evaluation in excess of 20 percent for residuals of a right ankle sprain from August 1, 2007. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Additionally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. III. Veterans Claims Assistance Act Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's claim for entitlement to a higher initial rating for residuals of a right ankle sprain, evaluated as 30 percent disabling from September 25, 2003 to July 31, 2007, and 20 percent disabling there from, arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's private and VA treatment records, and in March 2004, July 2005, January 2006, March 2006, April 2006, August 2006, and July 2007, he was afforded formal VA examination. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 30 percent for residuals of a right ankle strain from September 25, 2003 until August 1, 2007 is denied. A rating in excess of 20 percent for residuals of a right ankle strain from August 1, 2007 is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs