Citation Nr: 0813505 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-38 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected chronic exostosis, medial aspect of right ankle, status post Steida's process removal. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kathy Diener, Associate Counsel INTRODUCTION The veteran had active service from July 1996 to June 2000. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which continued a 10 percent rating for the veteran's service-connected ankle disability. FINDING OF FACT The veteran's ankle disability is not manifested by ankylosis, malunion of the os calcis or astragalus, astragalectomy, or marked limitation of motion. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for the veteran's right ankle disability have not been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5270- 5274 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). In the present case, the RO sua sponte adjudicated a claim for increase upon the receipt of additional service medical records that had not been part of the file when the veteran's initial claims of service connection had been addressed in a March 2001 rating decision. There was no application submitted by the veteran. The RO provided the appellant with notice in May 2005 and March 2006, and with September 2005 statement of the case and June 2006 supplemental statement of the case. While complete notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. He responded to the May 2005 notice by submitting a Form 21-4138, indicating that he had no further information or evidence to submit. The claim was subsequently readjudicated in a June 2006 supplemental statement of the case, following the provision of notice. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. The March 2006 notice addressed the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), explaining the bases for assigning disability ratings and effective dates. The notice letters did not discuss the criteria for an increased rating. See Quartuccio, 16 Vet. App. at 183; Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Although the appellant received inadequate notice as to that aspect, and that error is presumed prejudicial, the record reflects that he was provided a meaningful opportunity to participate effectively in the processing of his claim such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran was notified in April 2004 that his 10 percent rating, which had been initially assigned in March 2001, was continued. He was provided notice of how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and criteria required for a higher rating and he demonstrated his actual knowledge of what was required to substantiate a higher rating in his argument included with his Substantive Appeal where he specifically referenced range of motion. Furthermore, the veteran has been represented at the RO and before the Board by a National Veterans Service Organization (VSO) recognized by VA, whose arguments demonstrate a comprehensive knowledge of pertinent VA laws and regulations, including those contained in Part 4, the Schedule for Rating Disabilities, contained in Title 38 of the Code of Federal Regulations. VA has obtained service medical records, assisted the veteran in obtaining evidence and afforded the veteran a physical examination. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claim file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Discussion Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture presented more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities of the ankle are rated under Diagnostic Codes (DC) 5270 to 5274. 38 C.F.R. § 4.71a, Diagnostic Codes 5270- 5274. Normal ranges of ankle motion are defined by VA regulations as dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. The veteran's ankle disability, diagnosed as chronic exostosis, medial aspect of right ankle, status post Steida's process removal, is currently evaluated at 10 percent disabling under DC 5271, limitation of motion of the ankle. The veteran asserts that his symptoms entitle him to a higher rating. In his November 2005 notice of disagreement, he notes that he had 20 degrees plantar flexion in his right ankle, while he had 40 degrees plantar flexion in his left. He states that he cannot squat, kneel, walk, or run without pain in his right ankle and that if he walks for extended periods he experiences severe pain and inability to carry his weight later. The veteran also reports having trouble balancing on his right ankle, as well as pain with pointing his foot, standing on his toes, or rotating his ankle. The evidence shows the veteran received treatment from two private physicians between January 2004 and March 2005. He complained of pain on the right ankle and heel. He reported that he had pain from walking or standing and that he was unable to point his toes downward. The doctor noted there was discomfort and pain to palpitation on the medial aspect of the right ankle. There was an obvious exostosis on the medial aspect of the right ankle. The veteran was treated with lidocaine injections, which he reported improved his condition 70 percent. In March 2005, he had plantar flexion to 20 degrees in the right ankle, and he continued to complain of pain upon excessive dorsiflexion. The doctor noted that he would continue to treat the veteran with "conservative care because it seems to be working." The veteran underwent a VA examination in March 2006. He reported experiencing pain 5 days a week with occasional swelling, stating that the pain increased if he stayed on his feet all day. He reported no effect on his work, but his daily activities were limited in that he could not participate in sports and was less able to run and squat. The examiner noted a well-healed vertical scar posterior to the lateral malleolus, but noted tenderness posterior to the medial malleolus. There was no swelling. The veteran's muscle strength was normal, and his range of motion was dorsiflexion to 8 degrees, which did not change on repetition, and plantar flexion to 45 degrees with slight complaint of pain. The examiner stated that there was "slight plus" functional impairment of the right ankle, including slight incoordination and mild antalgic gait, but no weakness or fatigability. The examiner also stated that the veteran's inability to squat is the result of decreased dorsiflexion range. Under DC 5271, a 10 percent rating is warranted where there is moderate limitation of motion, and a 20 percent rating is warranted for marked limitation. The words "moderate" and "marked" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2007). The Board finds that the veteran's ankle disability is manifested by moderate limitation of motion. Although his dorsiflexion is limited, his plantar flexion is normal, and there is no evidence that his condition causes more than slight functional impairment. The Board acknowledges the veteran's contention that his disability impairs his ability to work; however, there is no evidence apart from these statements that he has actually been incapacitated or unable to work because of his ankle disability. In addition, the March 2006 VA examination included the veteran's report that his ankle disability had no effect on his work. The Board has considered whether another rating code is more appropriate to the veteran's disability than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411 (1995). The veteran does not have ankylosis of the ankle, ankylosis of subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. Therefore, DCs 5270, 5272, 5273, and 5274 are not applicable. 38 C.F.R. § 4.71a, DCs 5270, 5272-5274 (2007). Thus, a disability rating higher than the current 10 percent is not warranted under any DC specific to ankle disabilities. Additionally, the Board has specifically considered the guidance of DeLuca v. Brown, 8 Vet. App. 202 (1995) (discussing 38 C.F.R. §§ 4.40, 4.45), in order to determine whether an increased evaluation may be warranted. Despite the veteran's subjective complaints of pain, the clinical evidence shows that he has no more than slight incoordination and mild antalgic gait. The March 2006 VA examination included the examiner's observation that there was no pain on range of motion testing. The current rating of 10 percent contemplates slight functional impairment due to pain. There is no clinical evidence indicating additional functional loss due to weakness or excess fatigability, beyond that which was objectively shown in the examinations such that the veteran's limitation of motion of the ankle could be considered markedly disabling. 38 C.F.R. § 4.71. Therefore, the Board holds that an increased evaluation in consideration of DeLuca and applicable VA code provisions is not warranted. In conclusion, the evidence of record does not support an evaluation in excess of 10 percent for the veteran's service- connected ankle disability. The Board notes that in reaching these conclusions, the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A disability rating in excess of 10 percent for the veteran's chronic exostosis, medial aspect of right ankle, status post Steida's process removal, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs