Citation Nr: 1004263 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 08-20 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent from September 1, 2006, to September 12, 2007, and greater than 20 percent subsequent to December 1, 2007, for residuals of a left ankle sprain, status post fusion. 2. Entitlement to a compensable rating for residual scars associated with the service connected left ankle sprain, status post fusion. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The Veteran had service from February 1968 to February 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. It is noted that in the Veteran's substantive appeal, VA Form 9, the Veteran raises a claim for a right knee disability, secondary to the service connected left ankle condition. This matter is not before the Board and is referred to the RO for further development. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From September 1, 2006, to September 12, 2007, the competent medical evidence does not demonstrate that the Veteran's left ankle was ankylosed. 2. The competent medical evidence demonstrates that the Veteran has painful residual scars from the June 2006 and September 2007 left ankle surgeries. 3. The September 12, 2007, surgery fused the Veteran's left ankle, resulting in ankylosis with documented pain, swelling, weakness, tenderness, redness, and guarding of movements. CONCLUSIONS OF LAW 1. The criteria have not been met for a disability rating in excess of 20 percent for service connected residuals of a left ankle sprain, status post fusion from September 1, 2006 to September 12, 2007. 38 U.S.C.A. § 1155 (West Supp. 2009); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2009). 2. The criteria have been met for a 30 percent disability rating for service connected residuals of a left ankle sprain, status post fusion from December 1, 2007. 38 U.S.C.A. § 1155 (West Supp. 2009); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2009). 3. The criteria for a 10 percent disability rating for scars, residuals of a left ankle sprain, status post fusion have been met from September 1, 2006. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West & Supp. 2009); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7803, 7804 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2009). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2009). Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal 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. Id. See generally 38 U.S.C.A. § 5110(b)(2). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The Veteran seeks a disability rating greater than 20 percent from September 1, 2006 to September 12, 2007, and greater than 20 percent subsequent to December 1, 2007 for his service connected left ankle disability. The RO rated the Veteran under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5271 (2009). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2009). Traumatic arthritis, substantiated by x-rays findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010 (2009). 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. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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 diagnostic code 5003. 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, DC 5003 (2009). Under DC 5271, limited motion of the ankle, a 20 percent evaluation is the maximum amount of compensation available for marked limitation of motion of an ankle joint. In order to warrant the assignment of a 30 percent disability evaluation under DC 5270, ankylosis of the ankle, the Veteran's left ankle would have to be ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. For a 40 percent rating, the Veteran must have ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Diagnostic Code 7803 provides a 10 percent rating for scars that are superficial, unstable. Note (1) to DC 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with soft tissue damage. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to DC 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2008). The Board notes that the criteria for rating scars were again revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (to be codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805). However, because the Veteran's claim was pending before October, 28, 2008, his claim will only be evaluated under the rating criteria made effective from August 30, 2002. See id. A. September 1, 2006, to September 12, 2007 The Veteran had surgery on his left ankle in June 2006 and was granted temporary total disability from June to August 2006. In September 2006, the Veteran's rating was reduced to 20 percent. VA outpatient treatment records include a November 2006 letter from the Veteran's VA physician indicating that the Veteran continued to have significant pain and swelling of the ankle. She stated that as a result of the fusion which limits the motion of the subtalar joint, the Veteran was not able to have the same movement, walking and running ability. She stated that the Veteran continued to stay on light duty because the pain and swelling had not been resolved with bracing and injection. The physician pointed out that the Veteran needed surgical intervention and that given the amount of degenerative changes to the foot and ankle, it was not anticipated that the Veteran would ever be able to have a job requiring prolonged standing, walking, running, climbing, or lifting of weights. The physician further stated that the Veteran was able to perform work that allows him to sit most of the time and have short periods of standing, walking or lifting minimal weight. She stated that based upon the Veteran's job descriptions for corrections officer and deputy sheriff, he was not able to perform his primary job. A November 2006 VA outpatient treatment record indicates that the Veteran's pain continued to persist and increase in severity, especially with ambulation and in cold weather. He also said he suffered insidious onsets of sharp, shooting pain to the lateral ankle. The ankle brace provided some relief. On examination, it was noted that the Veteran had a surgical scar that was tender to palpation. The physician noted pain and numbness to the ankle and foot. The Veteran had a VA examination in May 2007. The examiner reviewed the claims file. The Veteran reported his pain at 8 of 10 with severe stiffness and intermittent swelling. He reported recurrent strain when ambulating on uneven surfaces which caused flare-ups. He also said he wore an ankle brace on a regular basis and could perform the activities of daily living at a slow pace. The physical examination revealed left ankle tenderness, dorsiflexion at 5 degrees, and plantar flexion at 10 degrees. The examiner was unable to determine inversion and eversion due to severe pain. Additional limitation with repetitive use included fatigue with no change in dorsiflexion or plantar flexion or guarding of movement. The Veteran's gait was antalgic, ambulating on the lateral border of the left ankle. No ankylosis was present. X-rays prior to surgery showed moderate to severe degenerative joint disease of the subtalar joint of the left ankle. The diagnosis was left ankle status post subtalar fusion in 2006 with residuals and degenerative joint disease. The examiner stated that there was no ankylosis of the ankle; however there was fusion at the subtalar joint. The Board has reviewed the evidence from September 2006 to September 2007. Such evidence does not show that the Veteran had ankylosis of the left ankle during this time frame; therefore, a 30 percent rating for his disability is not warranted. The Board considered the DeLuca criteria, such as additional functional loss due to pain, weakness, excess fatigability, or incoordination on repetitive use. However, the examiner stated that with repetitive use, the Veteran had fatigue with no change in range of motion or guarding of movement. As the Veteran retained range of motion of the ankle on repetitive use with only fatigue as a residual, the Board does not find that the Veteran's disability is comparable to the severity for a 30 percent rating under DC 5270 for ankylosis, or immobility, of the ankle. No other Diagnostic Codes afford a higher evaluation here. In reaching the above conclusion, the Board has considered the Veteran's lay statements with respect to his left ankle symptomatology. However, while endorsing pain and weakness, his statements do not support a finding of ankylosis, when viewed in conjunction with the objective medical findings showing otherwise. Moreover, although he used a brace, he indicated that he was able to perform the activities of daily living, albeit at a slow pace. In sum, the Board finds that the overall disability picture for the Veteran's left ankle disability does not more closely approximate a 30 percent rating from September 2006 to September 2007. 38 C.F.R. § 4.7. The appeal is denied. B. December 1, 2007 The Veteran underwent his second left ankle surgery in September 2007. At that time the Veteran's left ankle was fused, preventing movement of the joint. He was granted a temporary total disability rating from September 2007 to December 2007. The Veteran currently has a 20 percent rating for his left ankle disability from December 1, 2007. A VA outpatient record in Late December 2007 indicates that the Veteran had been doing only minimal ambulating. He reported pain with ambulation and he also endorsed swelling. Objectively, there was no range of motion at the ankle joint, though he could flex his forefoot and move his toes. The Veteran had a VA examination in February 2008. The examiner reviewed the claims file. The Veteran reported constant pain at 9 of 10 during the day and at 10 of 10 at night. He indicated weakness, stiffness, swelling, lack of endurance and fatigability. The Veteran also stated that he retired in November 2007 because his ankle prevented him from performing his duties as a deputy with the sheriff's department. He reported that he had difficulty getting in and out of a bathtub and walking on uneven surfaces. The examiner noted that the Veteran was walking with a Cam boot on the left side. On examination, he noted that the Veteran's left ankle was fused, with no active or passive movement in the left ankle or foot. The Veteran's dorsiflexion and plantar flexion were at zero percent as a result of the fusion. The examiner noted several well healed scars on the ankle and stated that the scars were tender to palpation. On repetitive use, the examiner noted no changes as there is no active motion in the ankle. However, the examiner found swelling, weakness, tenderness, redness, and guarding of movements. The Veteran had an antalgic gait, was unable to stand for more than 15 to 20 minutes, and is unable to walk more than half of a block due to pain. The examiner stated that the Veteran has ankylosis in the left ankle, that the ankylosis is stable, and that pain is present. To be entitled to a 30 percent rating, the Veteran's ankle would have to be ankylosed in dorsiflexion between 0 degrees and 10 degrees. To achieve a 40 percent rating, the Veteran must have ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. In this case, the Veteran's ankle is ankylosed at zero degrees dorsiflexion, and not between 0 and 10 degrees, as a result of his surgery; however, based upon the DeLuca criteria, the Board finds that the 30 percent rating is warranted due to the Veteran's documented pain, swelling, weakness, tenderness, redness, and guarding of movements. The criteria for a 40 percent rating have not been met as the Veteran does not have ankylosis with abduction, adduction, inversion, or eversion deformity. Accordingly, the Board finds that the overall disability picture for the Veteran's left ankle disability more closely approximates a 30 percent rating from December 1, 2007. Additionally, the Board finds that the Veteran is entitled to a separate 10 percent rating under DC 7804 for his residual surgical scars from September 2006. As noted in the November 2006 VA outpatient treatment record and the February 2008 VA examination, the Veteran has surgical scars that are tender to palpation. A higher rating is not provided for under DC 7804. Therefore, a 10 percent rating for superficial scars from September 2006 is granted. The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). The Board has considered the impact of the left ankle disability on the Veteran's job with the sheriff's department and realizes that the Veteran retired due to his inability to participate in all required job duties. However, as noted below, the Board is remanding this matter for TDIU consideration, and believes that the current rating takes into consideration the impact of the left ankle disability upon the Veteran's employment. The Board also notes that the Veteran's physician indicated that the Veteran could, at least prior to the second surgery, perform desk related or light duty jobs. The Board further finds that there has been no showing by the Veteran that the service-connected disorder has necessitated frequent periods of hospitalization. The Veteran was hospitalized for his two surgeries and was granted temporary total disability compensation during that time. No other hospitalizations have been noted. In the absence of such factors, the Board finds that criteria for submissions for assignment of the extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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 from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran's appeal stems from initial claims for temporary total disability (TTD) related to his two left ankle surgeries. The first claim for TTD was filed in October 2006. The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2006 that fully addressed all three notice elements and was sent prior to the initial RO decision in this matter. The second claim for TTD was filed in October 2007. The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2007, that fully addressed all three notice elements and was sent prior to the initial RO decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records. The Veteran submitted statements and buddy statements and was afforded VA medical examinations in May 2007 and February 2008. Significantly, neither the Veteran 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 that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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). ORDER Entitlement to a rating in excess of 20 percent for residuals of a left ankle sprain, status post fusion, from September 1, 2006, to September 12, 2007, is denied. A 30 percent rating is granted for residuals of a left ankle sprain, status post fusion from December 1, 2007. A 10 percent rating for residual scars associated with a left ankle sprain, status post fusion is granted from September 1, 2006. REMAND The Board regrets further delay of the Veteran's case; however, as the Veteran has alleged that his left ankle disability has substantially interfered with his ability to maintain employment, the Board finds that a remand is warranted for additional development. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held as follows: [W]e hold that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. The Court also stated that "when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." Id. at 454. Hence, the Veteran's claim for increased ratings for a left ankle disability includes consideration of whether TDIU is warranted under the provisions of 38 C.F.R. § 3.340, 3.341, 4.16. Accordingly, on remand, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU and afforded a general medical examination. The examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) the Veteran's service connected disabilities alone, without reference to any non-service connected disabilities, prevent the Veteran from maintaining substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with notice of how to substantiate a claim for TDIU. 2. The Veteran should be scheduled for a VA general examination. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The examiner is asked to render an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's service connected disabilities alone, without reference to any non- service connected disabilities, prevent him from maintaining substantially gainful employment. A rationale for all opinions should be provided. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs