Citation Nr: 1030640 Decision Date: 08/16/10 Archive Date: 08/24/10 DOCKET NO. 04-20 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 10 percent for a service-connected right ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from December 1992 to January 1997. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, inter alia, denied the Veteran's claim seeking entitlement to a disability rating in excess of 10 percent for his service- connected right ankle disability. This case previously reached the Board in August 2007. At that time, the Veteran's increased rating claim was remanded to provide the Veteran with a hearing. The case was returned to the Board in January 2008. At that time, the claim was again remanded for further development. The Veteran's claim has now been returned to the Board for further appellate consideration. In December 2007, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a copy of this transcript has been associated with the record. In an October 2004 statement, the Veteran withdrew from the appeal the issue of an increased rating for his right knee disorder. See 38 C.F.R. § 20.204(b) (2009). Therefore, this matter is no longer before the Board. FINDINGS OF FACT 1. Prior to May 12, 2009, the competent medical evidence does not show marked limitation of motion or functional loss of the right ankle. 2. From May 12, 2009, there is competent medical evidence of marked functional impairment and marked limitation of the range of motion of the right ankle. CONCLUSIONS OF LAW 1. Prior to May 12, 2009, the criteria for a disability rating in excess of 10 percent for the service-connected right ankle disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1- 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2009). 2. Since May 12, 2009, the criteria are met for a higher disability rating of 20 percent, for the Veteran's service- connected right ankle disorder. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of the VCAA letters from the AOJ to the Veteran dated in April 2003, March 2005, and February 2008. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his higher rating claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence that he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the February 2008 letter from the AOJ advised the Veteran of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007) (Dingess). Concerning his claim for an increased rating for his right ankle disability, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the U.S. Court of Appeals for Veterans Claims (Court) held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the VA notify the Veteran that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the Veteran's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit recently vacated the Court's previous decision in Vasquez-Flores, concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was provided with general notice as to the requirements for an increased rating in the April 2003, March 2005, and February 2008 notice letters. Furthermore, the Veteran has provided statements and evidence to the VA which shows that he is aware of the general criteria for proving a claim for an increased rating. See the Veteran's claim of January 2003, Informal Brief of Appellant in Appealed Case dated in June 2007, and the hearing transcript of December 2007. Finally, the May 2004 statement of the case (SOC), and the September 2004 and September 2009 supplemental SOCs (SSOCs), have all provided the Veteran with a review of the relevant criteria which had been used to decide the Veteran's rating. As such, the Veteran has been provided adequate notice which does not prejudice the Veteran's ability to meaningfully participate in his claim. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). With regards to the timing of his VCAA notice, the Board sees the AOJ did not provide the Veteran all necessary VCAA notice prior to initially adjudicating his claims in May 2003, the preferred sequence. But in Pelegrini II, the Court clarified that in these situations the VA does not have to vitiate that initial decision and start the whole adjudicatory process anew, as if that decision was never made. Rather, the VA need only ensure that the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claim, such that the intended purpose of the notice is not frustrated and he is still provided proper due process. Id. 120. In other words, he must be given an opportunity to participate effectively in the processing of his claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the VA cured the timing notice after sending additional VCAA and Dingess notice in February 2008 by readjudicating the case through the most recent SSOC of September 2009. Therefore, since the VA cured the timing error and because the Veteran has not challenged the sufficiency of his notice, the Board finds that the VA complied with its duty to notify. In essence, the timing defect in the notices has been rectified by the latter readjudication. In addition, the Veteran has never alleged how any error in the timing or content of his notice has prevented him from meaningfully participating in the adjudication of his claim. As such, the Veteran has not established prejudicial error in the timing or content of his VCAA notice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009). In addition to notification, the VA is required to assist the Veteran in finding evidence to support his claim. See 38 U.S.C.A. § 5103A. The AOJ has secured VA treatment records, and three VA medical examinations. The Veteran has submitted personal statements, and hearing testimony. The Veteran has not provided authorization for the VA to obtain any additional private medical records, nor has he indicated that such records exist. As such, the Board is satisfied that the AOJ has complied with the duty to assist the Veteran. The Board is also satisfied as to substantial compliance with its August 2007 and January 2008 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2007 the Board remanded the Veteran's claim to provide him with a Board hearing in accordance with his May 2004 substantive appeal (VA Form 9) request. This was provided to the Veteran in December 2007. Subsequently, in January 2008, the Board remanded the Veteran's claim for the AOJ to obtain complete VA medical treatment records regarding the Veteran's right ankle, and a current VA medical examination. In February 2008, the AOJ obtained VA medical treatment records regarding the period from April 2003 to February 2008. The AOJ then provided the Veteran with a VA medical examination for his right ankle in May 2009. The AOJ was then to provide the Veteran with readjudication of the Veteran's claim, which was provided in September 2009. As such, the Board concludes that the AOJ has complied with all of the Board's August 2007 and January 2008 remand directives. Governing Laws and Regulations for Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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. 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 his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The right ankle disability on appeal arises from a claim for an increased rating received by the AOJ in January 2003. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Court recently held VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. See Hart v. Mansfield, 21 Vet. App. 505 (2007). That is to say, the Board must consider whether there have been times when his disabilities have been more severe than at others. The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed (in this case, January 2002) until the VA makes a final decision on the claim. See Hart, supra; see also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). With any form of arthritis, painful motion is an important factor of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Analysis The Veteran's right ankle disability is currently rated under Diagnostic Code 5271, for limited motion of the ankle. 38 C.F.R. § 4.71a. This rating has been in effect since January 15, 1997 (the date of the Veteran's release from active duty service). The Veteran applied for an increased rating for his right ankle in January 2003. Other Diagnostic Codes for ankle disabilities that provide a rating greater than 10 percent are not more appropriate in this case because the facts of this case do not support their application. See, e.g., 38 C.F.R. § 4.71(a), Diagnostic Code 5270 (anklylosis of the ankle), Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of os calcis or atragalus), and Diagnostic Code 5274 (atragalectomy). There is no evidence in the record of any of these factors affecting the Veteran's right ankle and not appropriate for application in this case. See Butts v. Brown, 5 Vet. App. 532, 540 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Furthermore, the Board notes that the VA medical treatment record from November 2000 indicates that the Veteran experiences right ankle arthritis. However, x-rays conducted in November 2000, May 2004 and March 2009, and a CT (computerized tomography) scan conducted in August 2004, have not diagnosed the Veteran with arthritis, and the May 2009 VA medical examination shows that the Veteran does not experience right ankle arthritis. As such, it is not appropriate to evaluate the Veteran's right ankle under Diagnostic Code 5010, which directs that a rating for arthritis requires x-ray confirmation. 38 C.F.R. §§ 4.59, 4.71a. It follows that the Board will evaluate his disability under Diagnostic Code 5271 for limitation of motion, to determine if he is entitled to a higher rating. Under Diagnostic Code 5271, a 10 percent rating will be assigned for moderate limitation of ankle motion; a maximum 20 percent rating will be assigned for marked limitation of ankle motion. Normal range of motion for the ankle is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees as set forth in 38 C.F.R. § 4.71, Plate II. The words "moderate" or "marked" are not defined in Diagnostic Code 5271. Rather than apply a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. Concerning this, the VA medical examination of April 2003 indicated that the Veteran's right ankle had dorsiflexion limited to 10 degrees, plantar flexion limited to 30 degrees, showing a moderate degree of limitation of motion. However, a subsequent VA medical treatment record dated in June 2004 indicated that the Veteran had dorsiflexion of 20 degrees, and plantar (flexion) to 45 degrees, indicating a complete range of motion at this time and thus a substantial improvement in the Veteran's right ankle range of motion. A VA medical examination conducted in August 2004 indicated that the Veteran continued to have dorsiflexion up to 20 degrees, and plantar flexion to 45 degrees, again showing a complete range of motion. As such, these VA medical examinations show at worst a moderate limitation of motion for this period, appropriately rated at 10 percent. However, the VA medical examination conducted in May 2009 indicated that the Veteran had limitation of dorsiflexion to 10 degrees, and plantar flexion to 25 degrees, showing a substantial decrease in the Veteran's right ankle range of motion. With this limitation of motion at roughly half of the normal amount, the VA medical examination of May 2009 examination showed an increase in the severity of the Veteran's right ankle disability from "moderate" to "marked." This is the maximum available for limited motion of the ankle under Diagnostic Code 5271. 38 C.F.R. § 4.71a. The Board is also required to consider functional loss regarding the Veteran's right ankle disability. At the time of the April 2003 VA medical examination, the Veteran's pain was indicated as causing a functional loss which was "nil-mild." The August 2004 VA medical examination showed "no additional loss in degrees of range of motion of his ankle as a result of repetition;" however, the Veteran did have some "additional muscle fatigue and weakness with repetition." The examiner also noted that the Veteran was prevented from doing activities which required prolonged walking or standing. Again these examinations show, at worst, moderate limitation of the range of motion at the time of these examinations, and do not provide evidence for an increase in the Veteran's right ankle disability rating. The Veteran's representative, in the June 2007 Informal Brief of Appellant in Appealed Case indicated that the Board should note the Veteran's medication for his right ankle, and consider his disability without medication, but there is no basis in the rating criteria to indicate that the Veteran's disability should be rated without consideration of the positive effects of treatment, nor has the Veteran's representative indicated how increased medication would affect his level of functional loss. At his December 2007 Board hearing, the Veteran provided additional evidence regarding functional loss due to the pain of his right ankle. He indicated that he had obtained a brace and a cane due to instability, and had increased his dosage of pain medication. See the hearing transcript pges. 4, 7, 9. He also indicated that he was experiencing a decreased range of motion with increased instability, and this had caused him to fall at some point in 2005. Id. at 7-8. The Veteran is competent to provide evidence regarding his functional loss, and his statements are credible. Moreover, a January 2008 VA medical treatment record corroborates that the Veteran was obtaining a new brace due to some increased instability. However, the Board notes that a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As such, a consideration of the Veteran's functional loss shows that there had been some increase in the Veteran's right ankle disability over time, but do not provide a basis for assigning rating evaluation in excess of 10 percent under Diagnostic Code 5271 prior to May 12, 2009. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the May 2009 VA medical examination also showed an increase in the Veteran's functional loss for his right ankle. The examiner indicated that the Veteran's right ankle showed pain, instability, and weakness with constant effusions. The Veteran was able to stand for up to one hour, but no more than three, and able to walk more than a quarter of a mile, but less than one full mile. He was also indicated as constantly using corrective shoes and a brace. Finally, the examiner noted the Veteran has had persistent swelling at work, where he is required to stand. The Veteran's right ankle was also indicated as causing a mild to severe impact on his usual daily activities, and completely preventing him from participating in sports. Therefore, because the May 2009 VA medical examination indicated constant pain and effusion and limitations of the ability of the Veteran to walk, this examination shows sufficient deterioration of the Veteran's ankle to justify finding a "marked" decrease in the Veteran's range of motion due to functional loss. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In summary, since May 12, 2009, the Board finds that the evidence supports an increased maximum disability rating of 20 percent based upon limitation of range of motion and functional loss, for the Veteran's right ankle disorder. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a Diagnostic Code 5271; DeLuca, 8 Vet. App. at 206. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a further staged rating is appropriate. Here, the Board finds that the 20 percent rating granted in this case is only effective from May 12, 2009, the first date where a VA examination reveals this particular level of severity. Otherwise, prior to May 12, 2009, he is only entitled to a 10 percent rating. There is no basis to "stage" his ratings any further. Extraschedular Rating for Veteran's Right Ankle Disability The Court recently clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). First, the AOJ or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the AOJ or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. The Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). In this case, the Veteran's level of functional impairment shown in the record caused by Veteran's right ankle disability is specifically contemplated under 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202 at 206. Thereby rendering an extraschedular analysis moot. However, even if the Board were to concede that the rating criteria do not address all of the effects of the Veteran's right ankle disability, the evidence does not show exceptional or unusual circumstances, to suggest that the Veteran is not adequately compensated by the regular rating schedule. At his August 2004 VA medical examination, the Veteran has indicated that he had to shift from driving to dispatch at his trucking company, at least in part due to pain from his ankle. See also the hearing transcript pg. 10. As such, the Veteran has indicated some level of interference with his employment, but a review of the record shows no evidence that the Veteran has lost time at work due to his right ankle impairment. Furthermore, at his May 2009 VA medical examination the Veteran indicated that he was able to maintain employment at a job where he is required to stand, undermining his contention that his ankle requires that he work at a desk job. As such, the Veteran has not provided any corroborating evidence to show missed employment due to his right ankle disability. Finally, the evidence of record indicates that all of the Veteran's treatment for his right ankle has been on an outpatient basis, with no evidence of inpatient treatment. Therefore, the evidence of record simply does not warrant an extraschedular rating. In reaching this conclusion, the Board notes that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Prior to May 12, 2009, a disability rating in excess of 10 percent for a left ankle disorder is denied. As of May 12, 2009, a disability of 20 percent rating for the left ankle disorder is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs