Citation Nr: 1008348 Decision Date: 03/05/10 Archive Date: 03/11/10 DOCKET NO. 06-25 026A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. For the period from January 4, 2005 to December 27, 2006, entitlement to an evaluation in excess of 20 percent disabling for residuals of a left ankle sprain. 2. For the period beginning on September 1, 2007, entitlement to an evaluation in excess of 30 percent disabling for residuals of a left ankle sprain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Schroader, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1993 to January 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in Cleveland, Ohio that continued an evaluation of 20 percent disabling for residuals of a left ankle sprain, which rating was effective June 1, 2001. A March 2007 RO decision granted a temporary total disability rating (100 percent) for the Veteran's residuals of a left ankle sprain under 38 C.F.R. § 4.30 from December 28, 2006 to May 31, 2007. A subsequent August 2007 RO rating decision extended the temporary total disability rating period through August 30, 2007. An October 2008 RO decision granted an increased evaluation of 30 percent disabling for residuals of a left ankle sprain, effective September 1, 2007. Because this was not a grant of the maximum benefit allowed by law, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In April 2009, a Board hearing was held, and a transcript of such proceeding has been associated with the claims file. In May 2009, the Board remanded the case for further development, which remand has been substantially complied with and which development has been completed. FINDINGS OF FACT 1. From January 4, 2005 to December 27, 2006, the Veteran's residuals of a left ankle sprain are manifested by symptoms of stiffness, swelling, pain on use, and decreased range of motion, with dorsiflexion to 15 degrees with pain and plantar flexion to 20 degrees with pain; there was no evidence of ankylosis or a degree of functional limitation that rendered the ankle essentially ankylosed. 2. From September 1, 2007, the Veteran's residuals of a left ankle sprain are manifested by symptoms of stiffness, weakness, swelling, tenderness, pain on use, and decreased range of motion, with dorsiflexion to 10 degrees and plantar flexion to 20 degrees; no additional limitation of motion due to pain, weakness, fatigue, lack of endurance, or incoordination was noted; there are objective findings of complete ankylosis of the subtalar joint status post fusion. CONCLUSIONS OF LAW 1. From January 4, 2005 to December 27, 2006, the criteria for an evaluation in excess of 20 percent disabling for residuals of a left ankle sprain have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (Diagnostic Code 5271) (2009). 2. From September 1, 2007, the criteria for an evaluation in excess of 30 percent disabling for residuals of a left ankle sprain have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.20, 4.40, 4.45, 4.59, 4.71a (Diagnostic Code 5270) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claims for increased evaluations for his service-connected residuals of a left ankle sprain, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009). The 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 effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, the Board finds that a letter dated March 2005 fully satisfied the notice requirements of the VCAA, and that the Veteran's claim was readjudicated by way of a July 2006 Statement of the Case (SOC), a February 2007 Supplemental Statement of the Case (SSOC), and an October 2008 SSOC issued after the Veteran was granted an increased rating of 30 percent disabling for the period beginning on September 1, 2007. Thus, any error as to the timeliness of the notice is harmless. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and private treatment records are all in the file. The Veteran has at no time referenced outstanding records that she wanted VA to obtain. VA's duty to assist includes the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 3.327(a) (2009). The Veteran was provided with VA examinations relating to his claim for an increased evaluation in March 2005, May 2007, and August 2009. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's left ankle since the August 2009 VA examination (which was conducted pursuant to a Board remand after the Veteran indicated that his condition had worsened). See 38 C.F.R. § 3.327(a) (2009). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. As such, the Board finds the examination reports are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2009). Where there is a question as to which of two evaluations shall be applied, 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). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. However, staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Joints that are actually painful, unstable, or maligned due to a healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2009). Diagnostic Code 5271 provides a 10 percent rating for moderate limitation of motion and a 20 percent rating for marked limitation of motion. Full range of ankle dorsiflexion is from zero to 20 degrees, and full range of ankle plantar flexion is from zero to 45 degrees. 38 C.F.R. § 4.71, plate II (2009). Diagnostic Code 5270 assigns a 30 percent rating for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a (2009). A 40 percent rating is assigned under this diagnostic code for ankylosis 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); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Rating by analogy is appropriate for an unlisted condition where a closely related condition, which approximates the anatomical localization, symptomatology, and functional impairment, is available. 38 C.F.R. § 4.20 (2009). A. Period from January 4, 2005 to December 27, 2006 For period from January 4, 2005 to December 27, 2006, the Veteran's residuals of a left ankle sprain are rated as 20 percent disabling under Diagnostic Code 5271 based on marked limitation of motion. See RO Rating Decision, May 2001; 38 C.F.R. § 4.71a (2009). The Veteran seeks a higher rating. VA treatment records dated between September 2003 and September 2004 reflect that the Veteran complained of experiencing increased pain in his left ankle. A September 2004 VA treatment record reflects that a subtalar joint injection was performed, which was not helpful, and then the Veteran was provided with an AFO to help some of the instability he described, but it did not relieve the pain he reported. A March 2005 VA examination report reflects that the Veteran complained of experiencing pain, weakness, stiffness, swelling, instability, and lack of endurance. He reported that he has fallen secondary to ankle buckling, which has happened when walking on uneven pavement. He described his pain as constant, and characterized it as being 4/10 in severity with medications. Examination revealed that he walked with a slightly antalgic gait, and some slight swelling was noted in the ankle. Examination also revealed dorsiflexion to 15 degrees with pain, plantar flexion to 20 degrees with pain, inversion to 20 degrees with pain, and eversion to 10 degrees with pain. He was diagnosed with a history of multiple ankle strains status post stabilization surgery and a left ankle anterior inferior tibiofibular ligament tear. An objective finding of no ankylosis was specifically noted by the examiner. The Board finds that for the period from January 4, 2005 to December 27, 2006, the preponderance of evidence reflects that the Veteran's left ankle disability symptoms more nearly approximated no more than the 20 percent rating criteria provided under Diagnostic Code 5271 for marked limitation of motion, which is the maximum rating provided under that diagnostic code. See 38 C.F.R. § 4.71a (2009). With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under DeLuca, the Board has considered the Veteran's report during his VA examination that he experienced symptoms such as pain, weakness, and instability that might result in additional functional loss in his ankle. However, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court held that, because a veteran was already receiving the maximum rating available for limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 did not allow for a higher evaluation. As noted, the 20 percent currently assigned prior to December 28, 2006, is the maximum rating permitted based on limitation of motion in the ankle. Consequently, a higher disability rating is not permitted. As discussed in greater detail below, the Veteran has been assigned a 30 percent rating by analogy under Diagnostic Code 5270 by the RO, which pertains to ankylosis, on and after September 1, 2007. The Board has considered rating him under that code for the earlier period as well. As noted above, however, ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure, and VA examination in 2005 revealed dorsiflexion to 15 degrees with pain, plantar flexion to 20 degrees with pain, inversion to 20 degrees with pain, and eversion to 10 degrees with pain. Normal (full) range of ankle motion is defined as follows: from 0 degrees to 20 degrees of dorsiflexion and from 0 degrees to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Thus, VA examination revealed only slight limitation of dorsiflexion, and far more marked limitation of plantar flexion, which is consistent with the 20 percent rating assigned. Nevertheless, it is clear from these findings, as well as the x-ray evidence of record, that the Veteran's ankle was not ankylosed so as to warrant application of either Diagnostic Code 5270 or 5272. Ratings are also not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5273 or 5274, as there is no evidence of malunion of the os calcis or astragalus; or past astragalectomy. In summary, for period from January 4, 2005 to December 27, 2006, the Board finds that the preponderance of the evidence is against granting a disability rating higher than the 20 percent rating currently assigned under Diagnostic Code 5271 for the Veteran's residuals of a left ankle sprain. B. Period Beginning on September 1, 2007 As noted above, in December 2006, the Veteran underwent subtalar fusion surgery on his service-connected left ankle. See VA Orthopedic Note, October 2007. March and August 2007 RO rating decisions granted the Veteran a temporary total disability rating from December 28, 2006 to August 31, 2007 due to surgical treatment for his service-connected residuals of a left ankle sprain. For the period beginning on September 1, 2007, the RO rated the Veteran's left ankle by analogy under Diagnostic Code 5270 as 30 percent disabling. See RO Decision, October 2008; 38 C.F.R. § 4.71a (2009). The Veteran seeks an increased rating. A May 2007 VA examination report reflects the examiner noted the Veteran's history of several surgeries on his left ankle since he sprained it in service in 1993, the most recent being December 2006 subtalar fusion surgery. The examiner noted symptoms of stiffness and pain on use, but no edema, effusion, swelling, abnormal movement, or ankylosis. The examiner noted that the Veteran's left ankle revealed dorsiflexion to 10 degrees, plantarflexion to 20 degrees, inversion to 5 degrees, and eversion to 0 degrees. No additional limitation of motion due to weakness, fatigue, lack of endurance, or incoordination was noted. A diagnosis of chronic left ankle sprain status post multiple surgeries with post surgical changes was recorded. In June 2007, another surgery was performed on the Veteran's left ankle to remove symptomatic hardware. See VA Orthopedic Note, October 2007. An October 2007 VA orthopedic note reflects that, post fusion surgery, the Veteran's left ankle had complete ankylosis of the subtalar joint. An April 2008 VA orthopedic note reflects that the Veteran reported working as a hospital equipment delivery person and that by the end of the work day, he was experiencing pain over the lateral border of his left foot. An October 2008 VA orthopedic note reflects that the Veteran complained of experiencing pain after recently twisting his left ankle while moving hospital equipment (working) a few weeks prior. The report reflects that the Veteran's left ankle was expected to heal from the incident without difficulty. There was tenderness to palpation, but no swelling or enchymosis. An x-ray revealed no evidence of an acute bony injury. The orthopedic surgeon noted that the Veteran had an increased chance of "repeated ankle sprains because of his subtalar fusion." An August 2009 VA examination report reflects that the examiner noted symptoms of stiffness, weakness, swelling, tenderness, and pain on use with weekly flare-ups. No instability or incoordination was noted. The examiner recorded diagnoses of degenerative joint disease of the left ankle as well as status post subtalar fusion. The Veteran's left ankle revealed dorsiflexion to 15 degrees and plantar flexion to 30 degrees. It was noted that the Veteran reported that he had been employed as a delivery technician for one to two years, and the examiner noted that the Veteran's left ankle disability had a significant effect on his employment. In light of the above, the Board finds that for the period beginning on September 1, 2007, the preponderance of evidence reflects that the Veteran's residuals of a left ankle sprain more nearly approximate no more than the 30 percent rating assigned by the RO by analogy under Diagnostic Code 5270. See 38 C.F.R. §§ 4.20, 4.71a (2009). The Board notes that, for the period beginning on September 1, 2007, the Veteran is not entitled to a higher evaluation under any provisions of the code pertaining to the ankle. The maximum rating for ankylosis of the subastragalar or tarsal joint is 20 percent under Diagnostic Code 5272, the maximum rating for os calcis or astragalus (malunion of) is 20 percent under Diagnostic Code 5273, and the maximum rating for astragalectomy is 20 percent under Diagnostic Code 5274, none of which conditions is shown in the evidence of record. Also, as noted above, the Veteran's left ankle is not shown to be ankylosed in plantar flexion at more than 40 degrees or dorsiflexion at more than 10 degrees, or to have abduction, adduction, inversion, or eversion deformity, so as to entitle him to a higher rating under Diagnostic Code 5270. In assigning the above ratings for both periods, the Board has taken into consideration the Veteran's lay reports of his left ankle pain, its affect on his employment (as described in more detail below), his report at the hearing of his inability to play baseball and engage in other activities with his children, and that he wears a left ankle brace for support, which he wore at the Board hearing. See Hearing Transcript, April 2009 at 6. The Board acknowledges that the laypersons are generally competent to report these symptoms and events, and all of these factors have been taken into serious consideration in order to more accurately compensate his disability picture. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (appellant competent to testify regarding symptoms capable of lay observation). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1) for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, even taking into account the two instances of surgery during this appeal, the Veteran's disabilities have not required frequent hospitalizations, and the record does not show that the Veteran's left ankle condition results in marked interference with employment beyond that contemplated by the schedular criteria. In this regard, the Board notes that for the period December 28, 2006 to August 30, 2007, the RO granted temporary total disability for two surgeries performed on the Veteran's left ankle. With regard to the Veteran's employment, while the Veteran's disability undoubtedly interferes to some degree with his ability to work, it must be noted that the 20 and 30 percent disability ratings assigned by the RO are indicative of some industrial impairment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Furthermore, the Board notes that, despite the Veteran's left ankle disability, he reported working for about two years as a paramedic until March 2007, and then he obtained employment as a hospital equipment delivery person in 2008, where he remained employed at the time of the Board hearing in April 2009, at which time reported moving 147 pound hospital beds (and which job he continued at the time of his August 2009 examination). See VA Orthopedic Notes, May 2007, April 2008. Thus, the Board finds that the most probative evidence does not reflect that the Veteran's residuals of a left ankle sprain limit his activities so much as to result in marked interference with his employment, or otherwise take his case outside the norm. Consequently, the Board finds that the requirements for referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER For the period from January 4, 2005 to December 27, 2006, entitlement to an evaluation in excess of 20 percent disabling for residuals of a left ankle sprain is denied. For the period beginning on September 1, 2007, entitlement to an evaluation in excess of 30 percent disabling for residuals of a left ankle sprain is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs