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). 


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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