Citation Nr: 0814747 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 04-37 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for a hearing loss disability. 2. Whether new and material evidence has been presented to reopen a claim of service connection for tinnitus. 3. Entitlement to an increased rating for a left ankle strain, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from December 1970 to December 1973. He also asserts he had subsequent Reserve service which has not been verified. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Cleveland, Ohio, (hereinafter RO). The claims regarding hearing loss and tinnitus are addressed in the REMAND portion of the decision below and require additional development and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Motion in the left ankle is to 10 degrees of dorsiflexion and 40 degrees of dorsiflexion. 2. There is decreased muscle strength in the left ankle. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left ankle strain are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §, 4.71a, Diagnostic Code (DC) 5271 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. First with regard to the duty to assist, letters dated in November 2001, July 2003 and March 2006 advised the claimant of the information necessary to substantiate the claim for an increased rating for a left ankle strain. He was also informed of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was also told to provide any relevant evidence or information in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was provided with information regarding ratings and effective dates by way of the March 2006 letter. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In order to satisfy the first Pelegrini II element with respect to an increased-compensation claim, section 5103(a) compliant notice must meet the following four part test: (1) that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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; (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 of 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, 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; (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary 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. 2008). Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). For the following reasons, the Board finds that the elements of the Vazquez-Flores test have either been met or that any error is not prejudicial. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez-Flores. As such it does not take the form prescribed in that case. Failure to provide pre-adjudicative notice of any of the necessary duty to notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (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. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated that this was not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Prior to the initial adjudication of the claim, the RO sent the veteran letters dated in November 2001 and July 2003 which requested that the veteran provide evidence describing how his service connected left ankle disability had worsened. In addition, the veteran was questioned as to the severity of his left ankle problems at October 2003 and January 2007 VA examinations performed in association with this claim. The Board finds that the notice given and the responses provided by the veteran at the October 2003 and January 2007 VA examinations show that he knew that the evidence needed to show that his left ankle disability had worsened and what impact that had on his employment and daily life. As the Board finds the veteran had actual knowledge of the requirement, any failure to provide him with adequate notice is not prejudicial. See Sanders, supra. The Board finds that the first criterion is satisfied. See Vazquez-Flores. As to the second element, the Board notes that the veteran was provided notice of the specific criteria necessary for increased compensation for his service connected left ankle disability by way of a December 2003 rating decision and August 2004 statement of the case which was followed by readjudication and issuance of a supplemental statements of the case in June 2007. As such, the Board finds that Vazquez-Flores element two notice has been satisfied. See Sanders, supra; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). As to the third element, the Board notes that the veteran was provided notice that a disability rating would be determined by application of the ratings schedule and relevant Diagnostic Codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment and daily life by way of the previously referenced March 2006 letter that provided the veteran with VCAA notice regarding disability rating and effective date matters. Again, this letter was followed by readjudication and the issuance of a supplemental statement of the case in June 2007. As such, the third element of Vazquez-Flores notice has been satisfied. See Prickett, Sanders, supra. As to the fourth element, the July 2003 letter did provide notice of the types of evidence, both medical and lay, including employment records, that could be submitted in support of his claim, and this letter was followed by readjudication and the issuance of a supplemental statement of the case in June 2007. As such, the Board finds that the fourth element of Vazquez-Flores is satisfied. See Prickett, Sanders, supra. In light of the foregoing, the Board finds that the requirements of Vazquez-Flores are met. The Board, therefore, finds that the requirements of Pelegrini II are met and that the VA has discharged its duty to notify on the claim for an increased rating for left ankle strain. See Pelegrini II, supra. Since the RO continued the 10 percent rating at issue here for the veteran's service-connected left ankle disorder, and the Board has concluded that the preponderance of the evidence is against assigning a higher rating, there is no question as to an effective date to be assigned, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any event, notice was provided in a March 2006 letter. There is otherwise no indication that any effort by the RO adversely affected the essential fairness of the adjudication. See Sanders, supra. Therefore, the Board finds that there was no prejudicial error; notification errors, if any, did not affect the essential fairness of the adjudication. See Dunlap, supra. As such, the Board finds that the duty to notify has been satisfied with respect to the claim adjudicated below. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained the service medical records and the veteran has been afforded pertinent VA examinations in October 2003 and January 2007 which will be discussed in detail below. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service- connected left ankle disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough. The examinations in this case are adequate upon which to base a decision. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim for an increased rating for a left ankle strain that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Criteria/Analysis Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has 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. See Hart v. Mansfield, 21 Vet App 505 (2007). Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Full ankle motion is to 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Moderate limitation of motion of the ankle warrants a 10 percent disability rating. 38 C.F.R. § 4.71a, DC 5271. Marked limitation of motion warrants a 20 percent disability rating. Id. With the above criteria in mind, the relevant facts will be summarized. The service medical records reflected complaints of left ankle strain. After service, a July 1974 VA X-ray report showed minimal swelling in the left ankle, with the veteran complaining at that time about occasional left ankle pain. Based on this evidence, a July 1974 rating decision granted service connection for recurrent strain in the left ankle. A noncompensable rating was assigned by analogy to DC 5271. The noncompensable rating was continued until an August 1992 rating decision increased the rating to 10 percent based on a February 1992 X-ray demonstrating minimal arthritis and a VA examination at that time showing limitation of motion (dorsiflexion). See DC 5003, as set forth above. The 10 percent rating has been continued thereafter. Reviewing the more recent clinical evidence, reports from an October 2003 VA examination show the veteran complaining about persistent aching, soreness and tenderness in the left ankle. He also described occasional pain, swelling and stiffness. Upon physical examination, the veteran ambulated with a normal station and gait and he was able to raise onto his toe and heels and squat. There was a "little bit" of anterolateral tenderness around the ankle, but no swelling or deformity. The examiner noted that the veteran could "dorsiflex 0 degrees," and plantar flexion was to 40 degrees with pain at the extremes of motion. There was no evidence of instability, redness, heat, abnormal motion, guarding or ankylosis. At the most recent VA examination of the left ankle in January 2007, the veteran described the pain in the ankle as between 4 and 5 on a scale from 0 to 10. He stated that prolonged sitting in his job as a manager caused increased stiffness and pain in the foot, but that there were no employment restrictions. No limitations on the ability of the veteran to conduct daily activities were described. Upon physical examination, toe and heel walking and squatting increased pain. There was no warmth or swelling but there was point tenderness to palpation over the lateral malleolus. No bony deformities were present. Motion was to 10 degrees of dorsiflexion and 40 degrees of plantar flexion, and pain precluded additional motion actively or passively. Muscle strength was decreased to 4 out of 5 in the left ankle when compared to the right. Repetitive motion showed no increase in pain, weakness, fatigability and incoordination but did show increased pain and fatigue. The veteran did not report having any flareups of pain. Applying the pertinent legal criteria to the facts set forth above, as full dorsiflexion is to 20 degrees and full plantar flexion is to 45 degrees, the veteran's range of motion findings of 10 degrees of dorsiflexion and 40 degrees of plantar flexion cannot reasonably be said to represent "marked" limitation of motion so as to warrant a rating in excess of 10 percent under DC 5271. There is otherwise no objective evidence demonstrating entitlement to a rating in excess of 10 percent under any other potentially applicable diagnostic pertaining to the ankle. Also weighed by the Board have been the provisions of 38 C.F.R. § 4.40, with regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). There is no objective evidence demonstrating any compensable functional loss, in particular, loss of left ankle motion, associated with these symptoms which would warrant increased compensation above and beyond that currently in effect. There is also no evidence suggesting that entitlement to a staged rating is warranted. See Hart, supra. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2007). The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). In this case, however, the schedular evaluation is not inadequate. Ratings in excess of that currently assigned are provided for certain manifestations of the veteran's service- connected residuals, but those manifestations are not present in this case. Moreover, the Board finds no evidence of an exceptional disability picture. The veteran reported at the January 2007 VA examination that there were no employment restrictions resulting from his left ankle disability, he has not required frequent hospitalizations due to this disorder, and his service-connected left ankle residuals have not shown functional limitation beyond that contemplated by the 10 percent rating currently assigned. Accordingly, referral of this decision for extraschedular consideration is not indicated. ORDER Entitlement to a rating in excess of 10 percent for a left ankle strain is denied. REMAND The Board notes that in petitions to reopen, there is a limited duty to assist, to include obtaining pertinent records, particularly including service records. Ivey v. Derwinski, 2 Vet. App. 320 (1992). The veteran asserts that he developed hearing loss and tinnitus as a result of exposure to "cannon fire" during annual military training in July 2000. The RO contacted the Judge Advocate General in Columbus, Ohio, in March 2004 to obtain records which would support the veteran's assertions. The response to this request was that there were no records pertaining to the veteran, but that the RO should contact the National Personnel Records Center (NPRC) to determine if they had any such records. The RO does not appear to have contacted the NPRC to obtain these records, and there are no military records from the service in question associated with the claims file. The VA Adjudication Procedure Manual indicates that the Records Management Center (RMC) copies the veteran's records and mails the originals to his Reserve unit upon his separation from the Army. When the veteran no longer has a Reserve obligation or any other involvement with the Reserves, the records are then forwarded to NPRC. The VA Adjudication Procedure Manual also notes that the records may not be where they are supposed to be because of delays in forwarding records from one point to another. It is also possible that the records might never have left the separation center or treating facility or that the records might be in the veteran's possession. See VA Adjudication Procedure Manual, M21-1, Part III, para. 4.01. Thus, the Board notes that the requests for the veteran's military records may have been unsuccessful due to the delay of records migration between the veteran's reserve unit and NPRC, or that they may otherwise be located at NPRC for some other reason. Therefore, and in order to fulfill the duty to assist the veteran, the RO will be requested below to conduct additional efforts to obtain and associate with the claims file the veteran's complete military records. See 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002). For the reasons stated above, this case is REMANDED for the following: 1. The RO should contact the NPRC, Army Reserve Personnel Center, RMC, and any other appropriate location, to request the complete service records of the veteran, in particular those from asserted service in July 2000, as well as any other appropriate records repository to which pertinent service records may have been sent. The veteran's active duty, ACDUTRA, and INACDUTRA Reserve service dates should be verified. As set forth in 38 U.S.C.A. §5103A(b)(3) and 38 C.F.R. §3.159(c)(2), the RO should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The veteran should be notified of the attempts to locate the service records in question, as well as any further action to be taken. 2. Thereafter, the petition to reopen claims of service connection for a hearing loss disability and tinnitus must be readjudicated by the RO. If this readjudication does not result in a complete grant of all benefits sought by the veteran in connection with these claims, the veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to the Board. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs