Citation Nr: 0814503 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-42 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of a posterior malleolus avulsion fracture of the right ankle with degenerative joint disease. 2. Entitlement to a temporary total rating based on surgery and convalescence for coronary artery disease. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from August 1983 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In that rating decision, in pertinent part, the RO denied an increased rating for the veteran's right ankle disability then rated 10 percent disabling and denied a temporary total rating based on surgery and convalescence for the veteran's coronary artery disease. The veteran's disagreement with those determinations led to this appeal. During the course of the appeal, the RO granted and increased rating, to 20 percent, for the veteran's right ankle disability, and he continued his appeal. FINDINGS OF FACT 1. The veteran has no more than marked limitation of motion of the right ankle; even when pain is considered, the evidence does not show there is functional loss consistent with or comparable to ankylosis of the right ankle. 2. The veteran's coronary artery bypass grafting surgery in March 2003 was not for a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the veteran's right ankle fracture residuals with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2007). 2. The criteria for a temporary total rating, pursuant to 38 C.F.R. § 4.30, for March 2003 coronary artery bypass grating surgery and convalescence are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. See 38 C.F.R. § 3.159. These notice requirements apply to all five elements of a service connection claim: veteran status; existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of any award of benefits. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). With regard to the increased evaluation claim included in this decision, the Board is aware of the decision of the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez- Flores, the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate an increased rating claim (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increased in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect o that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) 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. In this case, in a letter dated in October 2003, the RO notified the veteran it was working on his claim for increased compensation for his service-connected right ankle disability and told him that to establish and increased evaluation, the evidence must show that his service-connected condition had gotten worse. The RO requested that the veteran submit or identify records of recent treatment for his ankle and asked him to provide the name and location of any VA or military facility where he had received medical care. In the October 2003 letter, the RO explained to the veteran that VA was responsible for getting relevant records from any Federal agency including VA, and that it would attempt to obtain relevant records not held by a Federal agency, including records from private doctors and hospitals, or current or former employers provided he furnished enough information. The RO emphasized to the veteran that it was his responsibility to make sure VA received all requested record records that were no tin the possession of a Federal department or agency. In addition, in a March 2006 letter to the veteran, the RO discussed the assignment of disability ratings and effective dates. The RO explained that depending on the disability involved, it would assign a rating from 0 percent to as much as 100 percent and that VA uses a schedule for evaluating disabilities that is published as title 38 Code of Federal Regulations, Part 4. The RO explained that in determining the disability rating it considered evidence of the nature and symptoms of the condition, severity and duration of the symptoms, and impact of the condition and its symptoms on employment. The RO told the veteran that if he had any information or evidence that he had not previously told VA about or had not submitted, and that information or evidence concerned the level of his disability, he should submit it or tell VA about it. The RO stated that examples of evidence the veteran should identify included: information about on- going treatment records, including VA or other federal treatment records he had not previously told VA about; recent Social Security Administration determination; statement from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work; or statements discussing his disability symptoms from people who have witnessed how they affect him. The RO reiterated that it would get any federal records he told VA about and that while he was responsible for getting any private records he identified, the RO would try to help him if he requested the RO to do so. In the same letter, the RO described the kind of evidence considered in determining an effective date and provided examples of the evidence the veteran should identify or provide. The Board is aware that the October 2003 and March 2006 VA letters do not contain the level of specificity set forth in Vazquez-Flores. The Board finds, however, that any notice error was not prejudicial because review of the record demonstrates that the veteran was provided with information sufficient for a reasonable person to have understood what is necessary to substantiate his claim. In this regard, the contents of the October 2003 and March 2006 letters provided notice of what the evidence must show, the types of evidence he should provide and what evidence he should obtain. The July 2004 statement of the case explained the criteria for the next higher disability rating available for the veteran's right ankle degenerative joint disease and posterior malleolus avulsion fracture and provided him with the applicable regulations relating to disability ratings. The veteran had the opportunity to respond to all this information, the claim was subsequently readjudicated by the RO, and the veteran was provided a supplemental statement of the case in October 2007. Moreover, the veteran had representation throughout the adjudication of his claim, which is a factor that may be considered by the Board. See Overton v. Nicholson, 20 Vet. App. 427, 438. Based on the foregoing, the Board finds that a reasonable person would have understood from the information that the RO provided to that veteran what was necessary to substantiate his increased rating claim and that therefore he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007). With respect to the claim for a temporary total rating under 38 C.F.R. § 4.30, the Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. The Court recognized that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). In this case, the RO notified the veteran of the controlling law and regulations, and of the basis for the denial of his claim for a temporary total rating, and in its June 2003 letter, the RO emphasized that a temporary total evaluation for convalescence requires surgical or medical treatment for a service-connected disability requiring convalescence period of at least one month. The veteran has had ample opportunity to respond. As to the duty to assist, service medical records are in the file, and the veteran has been provided VA medical examinations pertinent to his increased rating claim. The veteran has submitted private medical records, and VA medical records have been obtained. The veteran has not indicated that he has or knows of any additional information or evidence pertaining to his claims. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran relative to the claims decided here, and thus, no additional assistance or notification is required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. 384, 392-94 (1993). Right ankle disability The veteran essentially contends that his right ankle disability has worsened and warrants a higher rating. He states he has right ankle swelling and pain and very limited motion in his right ankle. He states he is not a medical expert, but believes the limited motion is worthy of a 30 percent rating. In a September 1991 rating decision, the RO granted service connection for residuals of a posterior malleolus avulsion fracture of the right ankle with pain and limitation of motion and assigned a 10 percent rating under Diagnostic Code 5271, effective the day after the veteran's separation from service in July 1991. In a June 2002 rating decision, the RO continued the 10 percent rating. The RO notified the veteran of that decision and his appellate rights in July 2002, but he did not appeal. In a January 2004 rating decision, the RO denied an increased rating, and the veteran's disagreement with that decision led to this appeal. In a decision dated in July 2004, a Decision Review Officer granted an increased rating to 20 percent for the right ankle disability effective June 23, 2003, and the veteran continued his appeal arguing he should be assigned a 30 percent rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). Separate diagnostic codes identify the various disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2007). Ratings for service- connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with the various criteria set forth in the Rating Schedule. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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 until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. §§ 3.102, 4.3. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must generally consider granting a higher rating in chase in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). After careful review of the entire record, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 20 percent for the veteran's service-connected right ankle disability. At a VA examination in June 2003, the veteran reported that he was currently a truck driver and a full-time student. It was noted that the veteran had a history of a right ankle fracture in 1989 and now had degenerative joint disease in that joint. At the examination, the veteran complained of stiffness, edema, clicking, pain, and weakness in his right ankle. He said that on a good day, his pain level was 4 on a scale of 10, and on a bad day it was 8 on a scale of 10; he said he had 20 bad days per month with his right ankle. Examination of the right ankle showed 18 degrees of dorsiflexion and 12 degrees of plantar flexion. There was a varus deformity of the right ankle on the lateral aspect. The examiner said there was significant ankylosing and stiffness of both ankles, but the right greater than the left. He also said that he would expect with aggravation, repetitive motion and flare-ups, the veteran would have remaining 20-25 degrees of loss of motion in his right ankle. At a VA examination in October 2003, veteran said he had been having increasing pain on a daily basis in the lateral aspect of the right ankle, and he said he had swelling, which had been getting worse at the end of the day. He also reported morning stiffness. He said his ankle was worse after driving long distances as well as with repetitive movement. The veteran said he used a brace intermittently. The veteran reported he had not lost time from work, but had increasing pain in the ankle because that is his throttle foot. He said that when he got out of his truck after driving a long distance, his ankle was quite stiff, he lost motion, and tended to limp. On physical examination of the right ankle in October 2003 there was tenderness laterally in the inframalleolar area. There was 0 degrees dorsiflexion and 30 degrees of planter flexion. There was 1+ edema of both lower extremities. There was no lateral or medial instability in the right ankle, and there was no synovial thickening or effusion. The examiner said that during flare-ups of pain he would expect no additional motion loss, but that he would expect moderate alteration in the veteran's gait and moderate diminished ambulatory endurance. The examiner referred to October 2003 X-rays in which the radiologist noted there was a small accessory ossicle projecting between the joint space and the medial malleolus. The radiologist said the joint space appeared preserved. The radiologist said there was a mild soft tissue swelling about the ankle, which had progressed slightly compared to a previous study in January 2002. At his VA examination in April 2005, the veteran reported that he was currently a long-haul truck driver. He reported that his truck was equipped with a 10-gear transmission and foot-operated clutch, which aggravated his service-connected left knee and right ankle conditions. The veteran reported he was using a cane and was taking oxycodone and morphine sulfate for pain in his knees and ankle. The veteran said he has pain in his ankle with walking and standing. He stated that he works 12 to 16 hours a day, 21 days at a time, and can usually only drive three hours before he has to stop and rest due to the pain in his knee and ankle. The veteran said that on a good day the pain in his ankle was a 5 on a scale of 10, and on a bad day it was w 10 out of 10, with 20 bad days per month. The veteran also complained of swelling and "snapping" of his right ankle. VA X-rays were again taken in April 2005, and the radiologist said there was no change from October 2003. On physical examination of the right ankle in April 2005, there was dorsiflexion to 30 degrees and plantar flexion to 10 degrees. There was no instability. The examiner said he noted stiffness and ankylosing of the right ankle. He stated that during flare-ups he would expect no additional motion loss in the right ankle but would expect moderate alteration in the patient's gait and moderate diminished ambulatory endurance. VA outpatient treatment records, dated from 2002 to 2005 do not provide any specific information pertaining to the veteran's right ankle disability nor do the private records submitted by the veteran. Under Diagnostic Code 5003, degenerative arthritis 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the ankle is considered a major joint. 38 C.F.R. § 4.45. The veteran's right ankle disability is appropriately evaluated under Diagnostic Code 5271, which addresses limited ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5251. That code provides or a maximum evaluation of 20 percent for marked limitation of ankle motion. Id. Under Diagnostic Code 5270, ankylosis of the ankle warrants a 20 percent rating if the ankle is fixed in plantar flexion at an angle of less than 30 degrees. A 30 percent rating requires that the ankle be fixed in plantar flexion at an angle between 30 degrees and 40 degrees or in dorsiflexion at an angle between zero degrees and 10 degrees. A 40 percent evaluation requires that the ankle be fixed in plantar flexion at an angle of more than 40 degrees; in dorsiflexion at an angle of more than 10 degrees; or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has repeatedly recognized that, at least for VA compensation purposes, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Although the examiner who conducted the June 2003 and April 2005 examinations used the term ankylosing, the evidence does not show immobility of the joint required for ankylosis. At no time during the rating period has the veteran been shown to have ankylosis of the right ankle, and the Board therefore finds that the preponderance of the evidence is against his claim of entitlement to an evaluation in excess of 20 percent for his service-connected right ankle disability. In reaching these determinations, the Board reiterates that the maximum evaluation under Diagnostic Code 5271 for limitation of motion of the ankle is 20 percent. Further, the Board notes that the Court has held that the provisions of 38 C.F.R. §§ 4.40 and 4.45, which relate to limitation of motion due to pain, are not applicable when the highest rating is in effect. See Spencer v. West, 13 Vet. App. 376, 382 (2000), see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As such, even though the evidence shows that many of the DeLuca factors are present, a rating higher than 20 percent based on limitation of motion due to pain is not available. Temporary total rating A temporary total (100 percent) disability rating will be assigned under 38 C.F.R. § 4.30 if surgery or treatment for a service-connected disability required convalescence for at least one month. See 38 C.F.R. § 4.30(a). The record shows that in March 2003 the veteran underwent coronary artery bypass grafting surgery at a Providence St. Vincent Medical Center. Service connection is not in effect for any cardiovascular disability, including coronary artery disease, and the veteran does not contend otherwise. He states he believes he is entitled to a convalescent rating because he was participating in a VA vocational rehabilitation program at the time of his surgery and needed time to recuperate before he could return to school. As stated, it is undisputed that coronary artery disease is not service connected. As the surgical procedure in March 2003 was not for treatment of a service-connected disability, a threshold legal requirement for establishing entitlement to benefits under 38 C.F.R. § 4.30 is not met. Consequently, the claim must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER A rating in excess of 20 percent for residuals of a posterior malleolus avulsion fracture of the right ankle with degenerative joint disease is denied. A temporary total (convalescent) rating under 38 C.F.R. § 4.30 following coronary artery bypass grafting surgery in March 2003 is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs