Citation Nr: 1007223 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-18 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating in excess of 20 percent for post-traumatic arthritis of the left ankle. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied a rating higher than 10 percent for the Veteran's service-connected left ankle disorder. During pendency of this appeal, a June 2008 rating decision increased from 10 to 20 percent the evaluation for the left ankle disorder, effective August 9, 2007. The Veteran continued to appeal for a higher schedular rating. A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). The Veteran testified during a January 2010 Travel Board hearing before the undersigned Acting Veterans Law Judge of the Board. A transcript of the hearing is of record. As a further preliminary matter, on his June 2008 VA Form 9 (Substantive Appeal to the Board) the Veteran raised an informal claim for service connection for a knee disorder secondary to service-connected posttraumatic arthritis of the left ankle. This additional claim, however, has not been initially developed and adjudicated by the RO. Accordingly, the matter is referred to the RO for appropriate development and consideration. FINDINGS OF FACT 1. The Veteran is already in receipt of the maximum assignable 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271, based on limited motion of the ankle, including limitation of motion due to arthritis and pain and orthopedic factors that limit ankle motion; left ankle ankylosis is not demonstrated for any period of increased rating claim. 2. At the September 22, 2007 VA examination, significant left ankle instability as a component of service-connected left ankle disability (post-traumatic arthritis) was shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for posttraumatic arthritis of the left ankle are not met for any period of increased rating claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271 (2009). 2. The criteria are met for a separate 10 percent rating for instability of the left ankle have been met for the period from September 22, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14, 4.20, 4.71, 4.71a, Diagnostic Code 5273 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist a Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2009), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2009). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353- 56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2009). Through VCAA notice correspondence dated in August 2007, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) on the claim on appeal. The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. In addition, the June 2008 Statement of the Case (SOC) explained the general criteria to establish claims for an increased rating. The RO has taken appropriate action to comply with the duty to assist the Veteran, through obtaining VA outpatient treatment records, and arranging for him to undergo a VA examination. In support of his claim, the Veteran has provided various private treatment records, and several personal statements. He has testified during a Travel Board hearing before the undersigned. Accordingly, the current record as it stands includes sufficient competent evidence to decide the claim. Under these circumstances, with regard to the issue addressed in this decision, the Board finds that VA's duties to notify and assist the Veteran have been fulfilled, and no further action is necessary to assist the Veteran. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.1 (2009). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Presently, the Veteran is in receipt of a 20 percent rating for service-connected post-traumatic arthritis, left ankle, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271, for marked limited motion of the ankle. Under that diagnostic code, a 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. The 20 percent disability rating for marked limitation of motion includes limitation of motion due to arthritis, pain, and other orthopedic factors that limit motion. The September 2007 report of Dr. K.S., an orthopedist, states that the Veteran was evaluated for continued ankle left complaints with pain, weakness, and worsening arthritic symptoms. At that time, the Veteran wore a full-time brace on his left ankle and had experienced progressive loss of motion, to the extent of an estimated 25 degree lack of dorsiflexion. He was unable to bring the ankle back to a neutral position, which impaired normal gait activities and also limited the ability to have a normal gait. It was observed that the ankle was posttraumatically arthritic and the arthritis was progressively worsening. The resulting osteoarthritis led to weakness, instability, and difficulty with prolonged standing and limited endurance levels. The Veteran underwent a VA Compensation and Pension examination on September 22, 2007. The modalities of treatment of left ankle pain were using a brace and pain medication. The ability to stand was limited to 15 to 30 minutes, and walking limited to one-quarter of a mile. Joint symptoms included giving way, instability, pain, and stiffness. There were no episodes of dislocation or subluxation, locking episodes, or effusion. Left ankle range of motion was dorsiflexion from 0 to 10 degrees, and plantar flexion from 0 to 15 degrees. An x-ray report indicated that the ankle mortise was intact. Minimal hypertrophic spurring was noted. There was no evidence of bony fracture. The impression was of minimal degenerative changes. The diagnosis was left ankle osteoarthritis. The report of a September 2009 evaluation by Dr. K.S. reflects that he had prescribed the Veteran new pain medication, and a low profile functional hinged ankle brace to benefit his left ankle by providing additional stability. Also provided to him was a pair of soft-soled orthotic shoes. Based upon these findings, the current evaluative framework of the assignment of a 20 percent rating for limited motion of the left ankle should remain in effect, as 20 percent is the maximum assignable rating under provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271. The VA rating schedule provides that where there is limited motion, but at least some retained motion, Diagnostic Code 5271 is directly applicable. Therefore, a 20 percent rating is the highest assignable rating for the Veteran's left ankle disability of post-traumatic arthritis predicated upon limitation of motion. The 20 percent disability rating for marked limitation of motion under Diagnostic Code 5271 includes limitation of motion due to arthritis, pain, and other orthopedic factors that limit motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59. While a higher rating than 20 percent for arthritis of the left ankle is potentially assignable under Diagnostic Code 5270 for ankylosis of the ankle, ankylosis is not shown for any period of rating in this case. A finding of ankylosis essentially requires absence of any motion. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). As the VA examination report and private medical reports indicate, the Veteran does not have ankylosis associated with the left ankle joint. Separate Rating for Instability of Left Ankle Instability is another major component of the Veteran's current left ankle disability. For the reasons indicated, the Board will finds that a separate 10 percent rating for left ankle instability is warranted for the period from September 22, 2007, when left ankle instability is first shown, based upon the continuing instances of treatment for this symptomatology by private treatment providers, as well as the Veteran's credible hearing testimony regarding this component of service-connected disability. The ability to award separate ratings for clearly different manifestations of the same underlying disability is within the purview of adjudicative authority. See 38 C.F.R. § 4.14 (under the rating schedule, separate ratings may be granted for distinct manifestations, provided not contravening the principle against evaluating the same disability under different diagnoses); Esteban v. Brown, 6 Vet. App. 259 (1994). In this instance, the presence of ankle instability and tendency to give way is an altogether distinct manifestation from limited motion, and moreover, has been attributed by treating physicians to the underlying service-connected osteoarthritis. The Board will apply Diagnostic Code 5273, for malunion of the os calcis or astralagus, as an analogous rating code for ankle instability, the basis for this action being that such malunion is inevitably productive of the type of instability and impairment evidenced in this particular case. See 38 C.F.R. § 4.20 ("When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous."). The decision to provide compensation for left ankle instability is furthermore in accordance with the rating principle that to the extent possible VA will coordinate rating with the actual impairment of function, here involving significant instability affecting joint functionality in daily life. See 38 C.F.R. § 4.21. Hence, a separate 10 percent rating for left ankle instability is assigned effective from the September 22, 2007 date of the VA examination report showing left ankle instability. Extraschedular Consideration The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In this case, the Veteran has not shown that his service- connected left ankle disorder has caused him marked interference with employment, meaning above and beyond that contemplated by his current schedular rating. He is not employed due to a voluntary retirement. The Veteran's left ankle disability also has not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying a rating higher than 20 percent for left ankle post-traumatic arthritis based upon limitation of motion, but is awarding a separate 10 percent rating for left ankle instability. This determination takes into full account the potential availability of any "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit- of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER A higher rating than 20 percent for post-traumatic arthritis of the left ankle is denied. A separate 10 percent disability rating for left ankle instability, for the rating period from September 22, 2007, is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs