Citation Nr: 1019552	
Decision Date: 05/26/10    Archive Date: 06/09/10

DOCKET NO.  06-21 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 
percent for talofibular strain of the left ankle.

2.  Entitlement to an initial evaluation in excess of 10 
percent for talofibular strain of the right ankle prior to 
October 1, 2009.

3.  Entitlement to an evaluation in excess of 20 percent for 
talofibular strain of the right ankle from October 1, 2009.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E.M. Evans, Law Clerk

INTRODUCTION

The Veteran served on active duty from October 1985 to June 
2005.  He additionally had a period of active duty for 
training in August 1982.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of an August 2005 rating decision of the 
Denver, Colorado, Regional Office (RO) of the Department of 
Veterans Affairs (VA).  The appeal was forwarded to the Board 
from the Roanoke, Virginia RO.  

This matter was previously before the Board in July 2009 when 
it was remanded for further development.  After completing 
the requested development to the extent possible, a November 
2009 supplemental statement of the case increased the right 
ankle disability to a 20 percent evaluation and denied the 
increase of the left ankle disability above the currently 
assigned 10 percent evaluation.  The case was then returned 
to the Board for further appellate consideration.  The Board 
finds that the there has been substantial compliance with its 
July 2009 remand.  Therefore, the Board will proceed to 
adjudicate the appeal.

As the claim on appeal arises from the Veteran's disagreement 
with the initial rating assigned following the grant of 
service connection, the Board has characterized this matter 
in light of the distinction noted in Fenderson v. West, 12 
Vet. App. 119, 126 (1999) (distinguishing initial rating 
claims from claims for increased ratings for disabilities 
that are already service-connected).  Inasmuch as higher 
ratings for the right and left ankle disabilities are 
available, and inasmuch as a claimant is presumed to be 
seeking maximum available benefit for a given disability, the 
claims for higher ratings, as reflected on the title page, 
remain viable on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 
(1993).


FINDINGS OF FACT

1.  All notification and development action needed to fairly 
adjudicate the issue on appeal has been accomplished.

2.  The left ankle disability is not shown to be manifested 
by marked limitation of motion.

3.  Prior to October 1, 2009, the right ankle disability is 
not shown to be manifested by marked limitation of motion.  

4.  As of October 1, 2009, the right ankle disability is 
shown to have been productive of a disability picture that 
more nearly approximated that of marked limitation of motion.  
There is no evidence of ankylosis.  


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 10 
percent for a left ankle disability are not met.  38 U.S.C.A. 
§§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic 
Code 5271 (2009).

2.  Prior to October 1, 2009, the criteria for an initial 
evaluation in excess of 10 percent for a right ankle 
disability are not met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. 
§§ 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2009).

3.  As of October 1, 2009, the criteria for an evaluation in 
excess of 20 percent for a right ankle disability are not 
met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 
4.71a, Diagnostic Code 5271, 5270 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Assist 

VA's duties to notify and assist claimants in substantiating 
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-
23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 
3.159).  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 evidence or lay evidence that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 
Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 
3.159(b)(1), proper notice 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.  Notice 
should be sent prior to the appealed rating decision or, if 
sent after the rating decision, before a readjudication of 
the appeal.  A Supplemental Statement of the Case, when 
issued following a notice letter, satisfies the due process 
and notification requirements for an adjudicative decision 
for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 
(Fed. Cir. 2006).

In this appeal, in a January 2005 pre-rating letter, the RO 
provided notice to the Veteran explaining what information 
and evidence was needed to substantiate the claim for service 
connection, as well as what information and evidence must be 
submitted by the appellant, and what information and evidence 
would be obtained by VA.  The August 2005 RO rating decision 
reflects the initial adjudication of the claim after issuance 
of the January 2005 letter.  

A March 2006 letter provided the Veteran with information 
pertaining to the assignment of disability ratings and 
effective dates, as well as the type of evidence that impacts 
those determinations, consistent with Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  After issuance of the 
March 2006 letter, and opportunity for the Veteran to 
respond, the July 2006 supplemental SOC (SSOC) reflects 
readjudication of the claim.  Hence, the Veteran is not shown 
to be prejudiced by the timing of the latter notice.  See 
Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also 
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 in an SOC or SSOC, is 
sufficient to cure a timing defect).

VA has also fulfilled its duty to assist in obtaining the 
identified and available evidence needed to substantiate the 
claims adjudicated in this decision.  The RO has either 
obtained, or made sufficient efforts to obtain, records 
corresponding to all treatment for the claimed disorders 
described by the Veteran.  Additionally, he was afforded VA 
examinations in January 2005 and October 2009 that were fully 
adequate for the purposes of determining the nature and 
etiology, as well as the current severity of the service 
connected disabilities.  See Barr v. Nicholson, 21 Vet. App. 
303 (2007). 

Overall, there is no evidence of any VA error in notifying or 
assisting the Veteran that reasonably affects the fairness of 
this adjudication. 

Legal Criteria

Disability evaluations are determined by evaluating the 
extent to which a service-connected disability adversely 
affects a veteran's ability to function under the ordinary 
conditions of daily life, including employment, by comparing 
his symptomatology with the criteria set forth in the 
Schedule for Rating Disabilities (rating schedule).  38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 
(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 
evaluation; otherwise, the lower evaluation will be assigned.  
38 C.F.R. § 4.7 (2009).

It is not expected, especially with the more fully described 
grades of disabilities, that all cases will show all the 
findings specified; findings sufficiently characteristic to 
identify the disease and the disability therefrom are 
sufficient; and above all, a coordination of rating with 
impairment of function will be expected in all cases.  38 
C.F.R. § 4.21 (2009).

Where as in this case, a veteran has expressed 
dissatisfaction with the assignment of an initial rating 
following an initial award of service connection for that 
disability, separate ratings can be assigned for separate 
periods of time based on the facts found - a practice known 
as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 
(1999).

A disability may require re-evaluation in accordance with 
changes in a veteran's condition.  In determining the level 
of current impairment, it is thus essential that the 
disability be considered in the context of the entire 
recorded history.  38 C.F.R. § 4.1. 

Ratings shall be based as far as practicable, upon the 
average impairments of earning capacity with the additional 
proviso that the Secretary shall from time to time readjust 
this schedule of ratings in accordance with experience.  To 
accord justice, therefore, to the exceptional case where the 
schedular evaluations are found to be inadequate, the Under 
Secretary for benefits or the Director, Compensation and 
Pension Service, upon field station submission, is authorized 
to approve on the basis of the criteria set forth in 38 
C.F.R. § 3.321 (2009) an extra-schedular evaluation 
commensurate with the average earning capacity impairment due 
exclusively to the service-connected disability or 
disabilities.  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.  38 C.F.R. § 3.321(b).

The Board has reviewed all the evidence in the Veteran's 
claims file.  Although the Board has an obligation to provide 
adequate reasons and bases supporting this decision, there is 
no requirement that the evidence submitted by the Veteran or 
obtained on his behalf be discussed in detail.  Rather, the 
Board's analysis below will focus specifically on what 
evidence is needed to substantiate the claim and what the 
evidence in the claims file shows, or fails to show, with 
respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000).  

The Veteran's ankle disabilities are both rated under 
Diagnostic Code 5271.  Under this code a 10 percent rating is 
assigned for moderate limitation of ankle motion.  Marked 
limitation of ankle motion warrants a 20 percent evaluation.  
Normal range of motion for the ankle is 20 degrees for 
dorsiflexion and 45 degrees for plantar flexion.  38 C.F.R. § 
4.71, Plate II.

The Veteran is currently in receipt of the highest evaluation 
available under the rating code for limitation of motion of 
the ankle for his right ankle disability.  The only rating 
code for evaluation of the ankle that provides for a rating 
in excess of 20 percent is that for ankylosis.

Ankylosis of the ankle that is in plantar flexion at more 
than 40 degrees, or in dorsiflexion at more that 10 degrees, 
or with abduction, adduction, inversion, or eversion 
deformity is evaluated as 40 percent disabling.  Ankylosis of 
the ankle in plantar flexion between 30 and 40 degrees, or in 
dorsiflexion between zero and 10 degrees is evaluated as 30 
percent disabling.  Ankylosis of the ankle in plantar flexion 
of less than 30 degrees is evaluated as 20 percent disabling.  
38 C.F.R. § 4.71a, Code 5270.

There are other factors which must be considered in addition 
to those contained in the applicable rating code.  The Board 
recognizes that the disability of the musculoskeletal system 
is primarily the inability due to damage or an infection in 
parts of the system to perform the normal working movements 
of the body with normal excursion, strength, speed, 
coordination, and endurance.  Weakness is as important as 
limitation of motion, and a part which becomes painful on use 
must be regarded as seriously disabled.  Factors to be 
considered include pain on movement, weakened movement, 
excess fatigability, and incoordination.  38 C.F.R. §§ 4.40, 
4.45.  Functional impairment due to pain must be considered.  
38 C.F.R. § 4.59.

The Veteran contends that his left and right ankle 
disabilities warrant higher evaluations than are currently 
assigned.  The Veteran's left ankle is currently evaluated as 
10 percent disabling and his right is evaluated as 20 percent 
disabling.  

The Veteran initially filed a claim for service connection 
for left ankle pain and chronic right ankle pain in December 
2004.  He was granted service connection in an August 2005 
rating decision and assigned a noncompensable rating, it is 
from this decision that this appeal arises.  

Background - Left Ankle

Service treatment records indicate that the Veteran was first 
treated for a left ankle sprain with pain in May 1989.  An 
April 2004 treatment record showed a diagnosis of bilateral 
ankle pain with right pain greater than left.  The Veteran 
was treated various times throughout 2004 for left ankle 
pain.  There was no instability noted on August and October 
2004 treatment records.

At a January 2005 VA examination, the Veteran indicated that 
he had ankle pain that involved flare-ups that lasted one to 
three days.  He could not run, jog, or jump.  He was placed 
on a limited profile and instructed to wear the proper brace 
with proper shoes and instructed that he should work at a 
slower pace during flare-ups.  On examination, dorsiflexion 
was zero to 20 degrees, plantar flexion was zero to 45 
degrees, inversion was zero to 40 degrees, and eversion was 
zero to 20 degrees.  The stability of the ankle was normal.  

An August 2005 rating decision granted service connection and 
assigned a noncompensable evaluation, effective July 1, 2005.  
The Veteran filed a notice of disagreement (NOD) with that 
decision in October 2005.  

In a June 2006 VA treatment report, the Veteran reported that 
he experienced pain three times a day and that it lasted for 
one to two hours.  He further reported that the pain traveled 
to the side, bottom, and top of the ankle.  The pain was 
described as being burning, aching, and sharp in nature.  The 
pain was a seven out of 10 and was elicited by physical 
activity, walking long distances, and standing.  On 
examination, the ankle showed signs of edema, weakness, 
tenderness, abnormal movement, and guarding of movement.  
Dorsiflexion was zero to 15 degrees, with pain at 15 degrees.  
Plantar flexion was zero to 30, with pain at 30 degrees.  The 
ankle function was additionally limited after repetitive use 
by pain, fatigue, weakness, lack of endurance.  Pain had the 
major functional impact.  The factors were noted to 
additionally limit the function of the ankle by 10 degrees.  
The ankle was not limited after repetitive use by 
incoordination.  

Based on that examination a July 2006 supplemental statement 
of the case (SSOC) increased the evaluation to 10 percent 
disabling, effective July 1, 2005.  

The Veteran was afforded another VA examination in October 
2009.  The Veteran reported that his left ankle symptoms 
included instability, giving way, pain, stiffness, and 
decreased speed of joint motion.  The symptoms associated 
with inflammation included warmth, swelling, and tenderness.  
Impairment was noted as being 50 percent.  On examination an 
abnormal shoe pattern was noted.  Dorsiflexion was zero to 20 
degrees; plantar flexion was zero to 45 degrees.  There was 
no evidence of objective pain with active motion observed. 
Additionally, there was no ankylosis observed.  The examiner 
opined that the Veteran's ankle problems made it untenable 
for him to continue in his occupation as a truck driver.  

Analysis - Left Ankle

Upon careful review of all the evidence, the Board finds that 
entitlement to a rating in excess of 10 percent for a left 
ankle disability is not established.  The limitations of 
motion shown do not approximate the level of marked 
limitation at any point during the appeal.  Although the 
Veteran complained of instability, there was none shown on 
either of the objective examinations.  

Although the evidence as of June 2006 shows that there was 
pain, fatigue, and weakness with left ankle motion, there was 
10 degree of additional loss of range of motion for either 
dorsiflexion or plantar flexion, which is contemplated in the 
10 percent disability evaluation assigned. More recently, in 
October 2009, no limitation of motion of the left ankle was 
evident. Thus, the Board finds that there is no limitation of 
motion shown that more nearly approximates or would rise to 
the level of marked as envisioned by the rating schedule.  

The Board has also considered whether a higher evaluation may 
be granted under other potentially applicable diagnostic 
codes. However, no ankylosis of the left ankle joint was 
shown on examination.  Ankylosis of subastragalar or tarsal 
joint, malunion of os calcis or astragalus, and 
astragalectomy are not shown in the medical evidence of 
record.  Thus, rating criteria for those disabilities do not 
apply.  38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274.

Background - Right Ankle 

Service treatment records reveal that the Veteran was first 
treated for a right ankle sprain in 1991.  He was treated at 
various other times throughout service for right ankle 
sprains.  It was noted in 1997 that the Veteran experienced 
chronic ankle pain following chronic ankle sprains.  A 
December 1997 report noted that chronic ankle pain and 
tendonitis were not relieved by physical therapy.  An April 
2004 treatment record showed a diagnosis of bilateral ankle 
pain with right pain greater than left.

At a January 2005 VA examination, the Veteran indicated that 
he had ankle pain that occurred more at the outer aspect of 
his right ankle.  He reported that ankle pain occurs when the 
ankle is turned outward.  There were no braces worn at that 
time but there were orthotic inserts worn with the proper 
shoes.  He further reported that flare-ups slow down the 
activities of daily life.  On examination dorsiflexion was 
zero to 20 degrees, plantar flexion was zero to 45 degrees, 
inversion was zero to 40 degrees, and eversion was zero to 20 
degrees.  Repetitive motion showed decreasing ankle inversion 
zero to 20 degrees because of the talofibular ligament 
strain.  The stability of the ankle was normal.  

An August 2005 rating decision granted service connection and 
assigned a noncompensable evaluation, effective July 1, 2005.  
The Veteran filed a notice of disagreement (NOD) with that 
decision in October 2005.  

In a June 2006 VA treatment report, the Veteran reported that 
he experienced pain three times a day and that it lasted for 
one to two hours.  He further reported that the pain traveled 
to the side, bottom, and top of the ankle.  The pain was 
described as being burning, aching, and sharp in nature.  The 
pain was a seven out of 10 and was elicited by physical 
activity, walking long distances, and standing.  On 
examination the ankle showed signs of tenderness, abnormal 
movement, and guarding of movement.  There was no deformity 
noted.  Dorsiflexion was zero to 15 degrees, with pain at 15 
degrees.  Plantar flexion was zero to 45, with pain at 45 
degrees.  The ankle function was additionally limited after 
repetitive use by pain, fatigue, weakness, and lack of 
endurance, with pain having the major functional impact.  The 
factors did not contribute to any additional limitation of 
the function of the ankle.  The ankle was not limited after 
repetitive use by incoordination.  

Based on that examination a July 2006 supplemental statement 
of the case (SSOC) increased the evaluation to 10 percent 
disabling, effective July 1, 2005.  

The Veteran was afforded another VA examination in October 
2009.  The Veteran reported that the ankle had gotten 
progressively worse since the onset of the disability.  There 
was a history of a right ankle sprain and a right cuboid 
fracture.  A summary of the joint symptoms reported by the 
Veteran were instability, giving way, pain, stiffness, and 
decreased speed of joint motion.  The symptoms associated 
with inflammation included warmth, swelling, and tenderness.  
Impairment was noted as being 90 percent.  On examination 
dorsiflexion was zero to 10 degrees; plantar flexion was zero 
to 20 degrees.  There was no ankylosis observed.  There was 
evidence of objective pain with active motion observed as the 
Veteran displayed severe wincing with palpitation over the 
lateral aspect of the inferior portion of the right ankle.  
The examiner opined that the Veteran's ankle problems made it 
untenable for him to continue in his occupation as a truck 
driver.  

A November 2009 SSOC increased the evaluation of the 
Veteran's right ankle to 20 percent, effective October 1, 
2009.  

Analysis - Right Ankle 

Upon careful review of all the evidence, the Board finds that 
entitlement to a rating in excess of 10 percent for a right 
ankle disability prior to October 1, 2009 is not established.  
The limitations of motion shown do not approximate the level 
of marked limitation at that point during the appeal.  

At the October 2009 VA examination the Veteran's dorsiflexion 
and plantar flexion testing results more nearly approximate 
that of marked limitation of motion.  Normal dorsiflexion is 
20 degrees and normal plantar flexion is 45 degrees, the 
Veteran's were 10 degrees and 20 degrees, respectively.  
There was also objective pain of motion with repetitive use.  
Although the Veteran complained of instability none was shown 
on either of the objective examinations.  

A higher evaluation of 30 percent disabling is not warranted 
because there was no ankylosis of the ankle in plantar 
flexion between 30 and 40 degrees, or in dorsiflexion between 
zero and 10 degrees.

The Board has also considered whether a higher evaluation may 
be granted under other potentially applicable diagnostic 
codes. However, no ankylosis of the right ankle joint was 
shown on examination.  Ankylosis of subastragalar or tarsal 
joint, malunion of os calcis or astragalus, and 
astragalectomy are not shown in the medical evidence of 
record.  Thus, rating criteria for those disabilities do not 
apply.  38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274.

Extra-schedular Consideration

The threshold factor for extraschedular consideration is a 
finding that the evidence before VA presents such an 
exceptional disability picture that the available schedular 
evaluations for that service-connected disability are 
inadequate.  Therefore, initially, there must be a comparison 
between the level of severity and symptomatology of the 
claimant's service-connected disability with the established 
criteria found in the rating schedule for that disability.  
If the criteria reasonably describe the claimant's disability 
level and symptomatology, then the claimant's disability 
picture is contemplated by the rating schedule, the assigned 
schedular evaluation is, therefore, adequate, and no referral 
is required.  However, in the second step of the inquiry, if 
the schedular evaluation does not contemplate the claimant's 
level of disability and symptomatology and is found 
inadequate, the RO or Board must determine whether the 
claimant's exceptional disability picture exhibits other 
related factors such as those provided by the regulation as 
"governing norms."  38 C.F.R. § 3.321(b)(1) (related 
factors include "marked interference with employment" and 
"frequent periods of hospitalization").  Thun v. Shinseki, 
F.3d 1366 (Fed. Cir. 2009).  Here, as discussed above, the 
rating criteria for the service-connected ankle disabilities 
reasonably describe the Veteran's disability level and 
symptomatology.  Thus, as the Veteran's disability picture is 
contemplated by the rating schedule, the assigned schedular 
evaluations are adequate, and no referral for extraschedular 
evaluations is required.  Id.


ORDER

Entitlement to an initial evaluation in excess of 10 percent 
for talofibular strain of the left ankle is denied.

Prior to October 1, 2009, entitlement to an initial 
evaluation in excess of 10 percent for talofibular strain of 
the right ankle is denied.

As of October 1, 2009, entitlement to an initial evaluation 
in excess of 20 percent for talofibular strain of the right 
ankle is denied.


____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs