Citation Nr: 1036035	
Decision Date: 09/23/10    Archive Date: 09/30/10

DOCKET NO.  97-09 956	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent 
disabling for a left ankle disability, effective prior to 
February 7, 2002.

2.  Entitlement to an evaluation in excess of 40 percent 
disabling for a left ankle disability, effective February 7, 
2002.


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from November 1966 to November 
1968 with a period of active duty for training (ACDUTRA) in May 
1991.

This matter comes to the Board of Veterans' Appeals (Board) on 
appeal from an August 1995 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Montgomery, 
Alabama.  The procedural history of this case is complex.  In 
pertinent part, an August 2008 Memorandum Decision by the United 
States Court of Appeals for Veterans Claims (Court) remanded the 
issues listed on the title page for further adjudication by the 
Board.  The Court held that the appeal stemmed from an 
application for an increased rating filed in June 1994.  

In March 2009, the Veteran's then attorney of record filed a 
motion to withdraw representation in this case.  In April 2009, 
the Vice Chairman of the Board granted the motion to withdraw 
representation.  An April 27, 2009 Board letter advised the 
Veteran that his attorney had withdrew representation in the 
case, and the Veteran was provided an opportunity to obtain 
additional representation.  The Veteran has not elected to obtain 
further representation in this case.

In a reconsideration decision dated July 2009, the Board remanded 
the case to the RO, via the Appeals Management Center (AMC) in 
Washington, D.C., for further development.

The issue of reopening a claim of service connection for 
osteoarthritis has been raised by the record, but has not 
been adjudicated by the Agency of Original Jurisdiction 
(AOJ).  Therefore, the Board does not have jurisdiction 
over the claim, and that claim is referred to the AOJ for 
appropriate action.  


FINDINGS OF FACT

1.  Overall, the credible lay and medical evidence shows that, 
prior to February 7, 2002, the Veteran's service-connected left 
ankle disability did not result in ankylosis in plantar flexion 
between 30 degrees and 40 degrees, ankylosis in dorsiflexion 
between zero and 10 degrees, a severe foot injury or severe 
injury to Muscle Group (MG) XI.

2.  Overall, the credible lay and medical evidence shows that the 
Veteran's left ankle disability has not demonstrated any unusual 
aspects of disability not contemplated in his schedular 
evaluation, and has not resulted in marked interference with 
employment or necessitate frequent periods of hospitalization 
such as to render impractical the application of the regular 
rating schedule standards.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 20 percent for a 
left ankle disability, effective prior to February 7, 2002, have 
not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 3.321(b), 4.1, 4.2, 4.7, 4.10,4.14, 4.40, 4.45, 4.59, 4.71a, 
4.73, Diagnostic Codes (DCs) 5270-74, 5284, 5311 (2009).

2.  The criteria for an evaluation in excess of 40 percent for a 
left ankle disability, effective February 7, 2002, have not been 
met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 3.321(b), 4.1, 4.2, 4.7, 4.10,4.14, 4.40, 4.45, 4.59, 4.68, 
4.71a, 4.73, Diagnostic Codes (DCs) 5165, 5270-74, 5284, 5311 
(2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability evaluations are determined by the application of the 
facts presented to VA's Schedule for Rating Disabilities (Rating 
Schedule) at 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 civilian occupations.  
38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is 
essential to consider its history.  38 C.F.R. § 4.1; Peyton v. 
Derwinski, 1 Vet. App. 282 (1991).  Where there is a question as 
to which of two evaluations shall be applied, the higher rating 
will be assigned if the disability picture more nearly 
approximates the criteria required for that evaluation.  
Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

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, 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).

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 assignment of a particular diagnostic code is "completely 
dependent on the facts of a particular case."  See Butts v. 
Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be 
more appropriate than another based on such factors as the 
Veteran's relevant medical history, his current diagnosis, and 
demonstrated symptomatology.  Any change in diagnostic code by a 
VA adjudicator must be specifically explained.  See Pernorio v. 
Derwinski, 2 Vet. App. 625, 629 (1992).

The evaluation of the same disability under various diagnoses is 
to be avoided.  That is to say that the evaluation of the same 
manifestation under different diagnoses, a practice known as 
"pyramiding," is to be avoided.  See 38 C.F.R. § 4.14.  The 
critical inquiry in making such a determination is whether any of 
the symptomatology is duplicative or overlapping.  See Esteban v. 
Brown, 6 Vet. App. 259 (1994).

Included within 38 C.F.R. § 4.71a are multiple DC's that evaluate 
impairment resulting from service-connected ankle disorders, 
including DC 5270 (ankylosis), DC 5271 (limitation of ankle 
motion), DC 5272 (ankylosis of the substragalar or tarsal joint), 
DC 5273 (malunion of the os calcis or astragulus), and DC 5274 
(astragalectomy).  

Under DC 5270, a 20 percent rating is warranted for ankylosis in 
plantar flexion, less than 30 degrees.  A 30 percent rating is 
warranted for ankylosis in plantar flexion between 30 and 40 
degrees, or in dorsiflexion between 0 and 10 degrees.  A 40 
percent rating is warranted for ankylosis is plantar flexion at 
more than 40 degrees, or in dorsiflexion at more than 10 degrees 
or with abduction, adduction, inversion or eversion deformity.

Normal range of motion of the ankle is to zero to 20 degrees in 
dorsiflexion, and zero to 45 degrees in plantar flexion.  See 
38 C.F.R. § 4.71a, Plate II.

Ankylosis refers to immobility and consolidation of a joint due 
to disease, injury, or surgical procedure).  See Shipwash v. 
Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED 
MEDICAL DICTIONARY 91 (27th ed. 1988).  See also 38 C.F.R. 
§ 4.71a, General Rating Formula for Diseases and Injuries of the 
Spine, NOTE (5) (defining ankylosis as fixation of a joint in a 
particular position).

Under DC 5271, the maximum 20 percent rating contemplates marked 
limitation of ankle motion.

Under DC 5272, the maximum 20 percent rating contemplates 
subastragalar or tarsal joint ankylosis in poor weight-bearing 
position.

Under DC 5273, the maximum 20 percent rating contemplates 
malunion of the os calcis or astragalus with marked deformity.  

Under DC 5274, the maximum 20 percent rating contemplates 
astragalectomy.

The Veteran has argued the potential application of DC 5284, 
which pertains to other foot injuries.  A 20 percent rating 
contemplates moderately severe foot injury.  A 30 percent rating 
contemplates a severe foot injury.  This diagnostic code also 
notes that actual loss of use of the foot warrants a 40 percent 
rating.

The Veteran has further argued the potential application of DC 
5311, which pertains to injury to MG XI which includes the 
muscles involved in the propulsion and plantar flexion of the 
foot, stabilization of the arch, flexion of the toes, and flexion 
of the knee.  38 C.F.R. § 4.73.  The involved muscles include the 
posterior and lateral crural muscles, and muscles of the calf 
such as triceps surae (gastrocnemius and soleus), tibialis 
posterior, peroneus longus, peroneous brevis, flexor hallucis 
longus, flexor digitorium longus, popliteus and plantaris.  A 20 
percent rating contemplates moderately severe muscle disability 
and a 30 percent rating contemplates a severe muscle disability.

Notably, arthritis is rated on the basis of limitation of motion 
under the appropriate diagnostic codes for the specific joints 
involved.  38 C.F.R. § 4.71a, DC 5003.  In the absence of 
limitation of motion sufficient for a compensable rating, a 
rating of 10 percent is assigned for each major joint or group of 
minor joints affected by arthritis.  Id.  Limitation of motion 
must be objectively confirmed by findings such as swelling, 
muscle spasm, or satisfactory evidence of painful motion.  Id.  A 
20 percent rating is permitted when there is X-ray evidence of 
degenerative arthritis involving 2 or more major joints or 2 or 
more minor joint groups with occasional incapacitating 
exacerbations.  38 C.F.R. § 4.71a, DC 5010.  

However, the 10 percent and 20 percent ratings under DC 5003 
based on X-ray findings will not be combined with ratings based 
on limitation of motion.  Id. at NOTE (1).  For purposes of 
rating disability from arthritis, the ankle is considered a major 
joint.  38 C.F.R. § 4.45.

The "amputation rule" set forth in 38 C.F.R. § 4.68 provides 
that the combined rating for disabilities of an extremity shall 
not exceed the rating for the amputation at the elective level, 
were amputation to be performed.  

Important for this case, amputation of the lower level of the 
leg, permitting prosthesis, warrants a 40 percent evaluation.  
38 C.F.R. § 4.71a, DC 5165.

Descriptive words "slight," "moderate," "marked," and 
"severe" as used in the various DC's are not defined in the VA 
Schedule for Rating Disabilities.  Rather than applying a 
mechanical formula, the Board must evaluate all of the evidence 
for "equitable and just decisions."  38 C.F.R. § 4.6.

If the evidence for and against a claim is in equipoise, the 
claim will be granted.  A claim will be denied only if the 
preponderance of the evidence is against the claim.  See 
38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. 
Derwinski, 1 Vet. App. 49, 56 (1990).

Historically, the Veteran incurred a left foot/ankle sprain, as 
well as a Jones fracture of the left 5th metatarsal, during a 
period of ACDUTRA in May 1991.  On his initial VA Compensation 
and Pension (C&P) examination in March 1993, the Veteran reported 
chronic left ankle pain with numbness exacerbated by use and cold 
weather.  He was employed as a fire department administrator, and 
served in the National Guard Reserves.  Examination was 
significant for left ankle dorsiflexion to approximately 10 
degrees and plantar flexion to about 30 degrees.  There was ankle 
tenderness but no effusion.  X-ray examination of the left ankle 
showed no evidence of fracture.  The examiner diagnosed chronic 
pain of left ankle secondary to old fracture, and traumatic 
osteoarthritis.  

A March 1994 RO rating decision granted service connection for 
status post fracture, left 5th metatarsal, with chronic left 
ankle pain.  An initial 10 percent rating was assigned under DC 
5299-5271.

The Veteran filed a claim for an increased rating on June 1, 1994 
reporting a recent left ankle surgery.  VA clinical records in 
April 1994 noted symptoms of constant left ankle pain and 
instability.  A May 1994 X-ray examination demonstrated widening 
in the lateral and posterior aspects of the ankle joint space 
under stress, resulting in an impression of unstable ankle 
suggestive of ligamentous tear.  A VA hospitalization record 
revealed that, on May 31, 1994, the Veteran underwent left Evans 
Procedure due to left lateral ankle instability since 1991.

A March 1995 private clinical record noted that the Veteran had 
an antalgic gait without much left ankle inversion.  X-ray 
examination revealed a couple of bone fragments distal to the 
lateral malleolus and the sulcus.

A June 1995 RO rating decision awarded a 100 percent rating, 
based upon surgery necessitating convalescence, from May 25, 1994 
to August 1, 1994.

On VA C&P examination in July 1995, the Veteran complained of 
left ankle pain with limitation of motion and being unable to 
walk for prolonged periods of time due to pain.  Examination of 
the left ankle showed a well-healed surgical incision scar 
measuring about 10 cm over the lateral aspect of the left ankle 
running vertically from the lower 3rd of the left over the 
lateral malleolar area.  There was swelling mainly on the lateral 
aspect of the left ankle around the lateral malleolar area.  The 
left ankle dorsiflexed to 10 degrees and plantar flexed to 15 
degrees.  Inversion and eversion were severely restricted.  The 
Veteran ambulated with a significant limp favoring the left 
ankle.  The Veteran was noted to have a pes planus deformity 
bilaterally.  The examiner diagnosed chronic left ankle pain 
secondary to injury with status post Evans Procedure for left 
ankle lateral instability.

An August 1995 RO rating decision granted a 20 percent rating for 
left ankle disability under DC 5299-5271, effective August 1, 
1994.  This hyphenated code may be read to indicate that the 
service-connected disability is rated by analogy to limitation of 
ankle motion under DC 5271.  See 38 C.F.R. § 4.27.

In a VA Form 9 received in October 1995, the Veteran described 
chronic left ankle pain which prevented him from walking long 
periods of time.  He reported symptoms such as swelling with no 
lateral ankle movement.

In February 1997, the Veteran underwent comprehensive 
arthroscopic examination of the left ankle which included 
extensive debridement.  The surgical report noted that the prior 
peroneal tendon ligament repair had been impinging on the talus 
as it moved in the flexion and extension direction.  The surface 
was extensively debrided with partial removal of talus, but the 
repair itself was not removed due to fear of instability.  The 
orthopedic surgeon provided a diagnosis of status post repair of 
left collateral ligament.

The Veteran underwent additional VA C&P examination in November 
1997.  The Veteran reported chronic daily left ankle pain 
worsened during cloudy weather.  After prolonged standing or 
walking, the left ankle was painful with swelling.  He was fairly 
comfortable in a sitting or lying position.  He could walk 
approximately 2 blocks, or stand 30 minutes, before the onset of 
pain.  He wore an ankle brace which was of questionable benefit.  
Treatment consisted of Motrin and analgesic rub.  The Veteran 
worked as an assistant fire chief performing mostly 
administrative and desk work.  The Veteran described being able 
to manage his occupational duties.  He occasionally used a 
walking cane.  

On examination, the Veteran's left ankle revealed no tenderness, 
deformity or edema.  The Veteran walked with a limp favoring the 
left lower extremity, and had decreased ability to evert and 
invert the left foot.  Dorsiflexion was limited to 0 degrees and 
plantar flexion was limited to 35 degrees.  X-ray examination of 
the left ankle was interpreted as normal.  X-ray examination of 
the left foot was significant for osteoporosis with no residual 
bony deformity.  The examiner diagnosed chronic left ankle pain, 
status post remote injury and surgical procedures, and remote 
fracture of the 5th left metatarsal without significant sequelae.  
The examiner opined that the Veteran's functional loss due to 
left ankle pain was "significant."

Thereafter, the Veteran's private clinical records include an 
August 1998 report that his left ankle was still "hurting him a 
good bit."  X-ray examination of the left ankle was interpreted 
as showing some narrowing and arthritis of the left ankle joint 
space.  In October 1999, the Veteran described continued left 
ankle pain and dysfunction.  An October 1999 magnetic resonance 
imaging (MRI) scan revealed "some articular cartilage loss over 
the tibio-talar joint."  The Veteran's tendons were normal and 
no ligament injuries were noted.  

The Veteran underwent VA C&P examination in November 1999.  At 
that time, the Veteran reported constant left ankle pain, 
stiffness, weakness and instability.  He sometimes experienced 
inconsistent swelling and instability.  He wore orthotics per 
doctor orders, and was unable to run, jog or place too much 
weight on the left ankle.  He could only walk with limping and 
listing.  The Veteran described his left ankle and foot 
disability as "definitely" interfering with his job status, but 
no specific details of workplace interference were described.

On examination, the Veteran limped while walking, favoring his 
left ankle.  Range of motion testing revealed dorsiflexion to 5 
degrees, dorsiflexion to 20 degrees, no inversion and eversion to 
5 degrees.  All movements caused pain, especially for inversion 
and eversion with stress testing.  The talofibular ligament site 
was tender.  There was no active swelling.  The Veteran's left 
ankle demonstrated 4/5 strength which would probably be 
classified as 3/5 strength with increased pain or tiredness.  
There was muscle tightness and stiffness but no localized spasm.  
There was no ankle subluxation.  Instability had been corrected 
by surgery.  There was no locking.  The examiner diagnosed status 
post left ankle lateral instability status post surgical 
correction with chronic tibia talar joint arthritic changes as 
well as chronic left ankle synovitis.  The examiner described the 
Veteran's functional limitations as follows:

... This gentleman already having an AFO restricted 
range of motion more and also interfering with normal 
functioning.  First of all, he is not normal 
functioning anyway because of his mentioned problems.  
Here I would also like to specify that if the ankle is 
left alone it has pain, but the movements when he 
tries to move the ankle, or even if he tries to move 
it any direction there is constant pain, especially 
with any kind of resistance or any stretch on the 
outer aspect of the ankle.  Also would like to add 
whenever there is a flare-up of his pain it would add 
more functional limitation during those periods and to 
give additional degrees I would classify all in the 
moderate to moderately severe range ... The patient's 
forefoot and mid foot are functioning well, except for 
his left 3rd and 5th hammertoes that remain 
functional, although the hammertoes on those mentioned 
areas the range of motions are restricted.  Any 
movements do cause pain.

On VA C&P examination in March 2000, the Veteran reported having 
constant left ankle pain which he treated with anti-inflammatory 
medications.  The Veteran indicated having to wear an ankle 
brace, but did not wear a brace to his examination.  The Veteran 
further described significant restriction of left ankle movement.  
On examination, the Veteran significantly limped with ambulation 
favoring the left ankle.  The Veteran reportedly used a cane, but 
he did not report with a cane.  There was no swelling or effusion 
of the left ankle.  Tenderness was present around the lateral and 
malleolal areas.  The left ankle dorsiflexed to about 5 degrees 
and plantar flexed to 20 degrees.  Inversion and eversion were 
limited.  There was mild muscle atrophy of the left leg and ankle 
when compared to the right.  The examiner diagnosed significant 
residuals injury and surgery left ankle with significantly 
decreased range of motion and chronic pain in the left ankle.

A November 2000 VA Social and Industrial Survey noted that the 
Veteran lived alone in a 2 bedroom house.  The Veteran described 
constant, nagging left ankle pain with limitation of motion which 
required continuous medication.  The Veteran was employed in an 
administrative position with a city fire department for the past 
10 years.  The Veteran described being in constant pain which 
hampered his day to day functioning, with him working and then 
going home.

In a statement received in May 2001, the Veteran reported daily 
left ankle pain which was not alleviated by any form of 
treatment.  The Veteran described having arthritis with an 
inability to walk very far.

Thereafter, a December 14, 2001 VA clinical record was 
significant for pain on palpation (POP) on the lateral aspect of 
the Veteran's left ankle and decreased anterior left leg muscle 
strength.  There was no crepitus with left ankle range of motion 
(ROM).  The examiner diagnosed posttraumatic left ankle arthritis 
status post open reduction internal fixation (ORIF).  On February 
13, 2003, the Veteran described increased pain of the left ankle 
with an inability to walk properly.  Examination noted a 
"rigid" left ankle.  Several days later, the Veteran was 
treated for clawtoe deformities of the left foot resulting in 
acquired keratodermas.

On VA C&P examination in April 2003, the Veteran reported daily 
pain of 7/10 severity which rose to 9-10/10 severity at least 
twice a week.  The Veteran described decreased range of motion 
with walking in proportion to the amount of his activity.  He 
could not walk on uneven surfaces or climb stairs.  The Veteran 
basically sat at work, taking his shoes off.  He wore a brace on 
occasion and had to monitor his activities with stairs and uneven 
surfaces.  The Veteran had undergone steroid shots.  On 
examination, the Veteran had an antalgic gait.  He had difficulty 
and expressed severe pain when attempting toe and heel rising.  
Pes planus was apparent on both feet, and the left foot 
demonstrated tenderness all the way up through the ankle on deep 
palpation.  The left ankle dorsiflexed to 3 degrees, plantar 
flexed to 18 degrees, everted to 5 degrees and inverted to 10 
degrees.  The Veteran complained of tenderness along the outer 
aspect of the foot.  There was callus formation on the bottom of 
the foot.  The ankle was rigid with decreased strength, but there 
was no laxity.  Mild hallux valgus was noted.  X-ray examination 
of the left ankle was interpreted as normal.  X-ray of the feet 
was interpreted as showing mild hallux valgus deformity of the 
left foot.  The examiner diagnosed chronic left ankle status post 
trauma with surgery with moderately severe to severe functional 
loss of range of motion, and hallux valgus of the left foot.

In December 2003, the Veteran underwent distal interphalangeal 
arthroplasty of the left 3rd digit.

An October 2007 private rheumatology consultation noted the 
Veteran's report of a left ankle that ached, was mildly diffusely 
stiff, and had occasional numbness and tingling.  The examiner 
noted that the Veteran had very limited motion of his left ankle, 
and assessed osteoarthritis of the left foot related to previous 
degenerative changes secondary to previous fracture.  It was 
noted that the Veteran's use of ankle braces and orthotics had 
provided him no relief.

On VA C&P examination in March 2008, the Veteran described 
constant left ankle pain of 6/10 severity associated with 
weakness, stiffness, swelling, instability, give-way, locking and 
fatigueability.  At least 4 times per week, he experienced pain 
flare-ups of 10/10 severity precipitated by increased activity.  
The Veteran reported an additional 25 percent limitation of 
motion and functional limitations during flare-ups of disability.  
Functionally, the Veteran could only stand for 10 minutes and 
walk approximately 3 blocks.  He was unable to walk for exercise, 
stand for extended periods of time, jog or engage in sports.  The 
Veteran walked with a limp.  On examination, there was mild 
swelling of the left lateral ankle.  The left ankle dorsiflexed 
to minus 5 degrees with pain, plantarflexed to 35 degrees with 
pain, and everted 5 degrees with pain and inverted 5 degrees with 
pain.  There was an increase in pain with a 5 to 10 degree motion 
loss with repetitive testing.  The Veteran walked with a mild 
limp without the use of a cane.

Applying the criteria to the facts of this case, the Board finds 
that the criteria for an evaluation greater than 20 percent for 
service-connected left ankle disability have not been met for any 
period of time prior to February 7, 2002.  The credible lay and 
medical evidence shows that, prior to February 7, 2002, the 
Veteran's service-connected left ankle disability did not result 
in ankylosis in plantar flexion between 30 degrees and 40 
degrees, ankylosis in dorsiflexion between zero and 10 degrees, a 
severe foot injury or severe injury to MG XI.

Notably, the 20 percent rating assigned for service-connected 
left ankle disability represents the maximum schedular ratings 
under DC 5271 (limitation of ankle motion), DC 5272 
(subastragalar or tarsal joint ankylosis in poor weight-bearing 
position), DC 5273 (malunion of the os calcis or astragalus with 
marked deformity) and DC 5274 (astragalectomy).  Thus, there is 
no basis for further consideration of these diagnostic codes.

A higher schedular rating is available under DC 5270, which 
evaluates varying forms of ankylosis.  However, the medical 
evidence does not support a finding that the Veteran manifested 
actual ankylosis of the ankle joint in either plantar flexion and 
dorsiflexion.  For VA purposes, ankylosis involves fixation of a 
joint in a particular position.  See also 38 C.F.R. § 4.71a, 
General Rating Formula for Diseases and Injuries of the Spine, 
NOTE (5).  The lay and medical evidence, however, shows that the 
Veteran's demonstrates active movement in the left ankle joint.  

For example, the Veteran's left ankle plantar flexion was 
clinically measured as 15 degrees (VA C&P examination report 
dated July 1995), 35 degrees (VA C&P examination report dated 
November 1997), 20 degrees (VA C&P examination report dated 
November 1999), and 20 degrees (VA C&P examination in March 
2000).  Left ankle dorsiflexion has been clinically measured as 
10 degrees (VA C&P examination report dated July 1995), 0 degrees 
(VA C&P examination report dated November 1997), 5 degrees (VA 
C&P examination report dated November 1999), and 5 degrees (VA 
C&P examination in March 2000).  

In March 2008, the Veteran himself described active ankle motion 
which was reduced during flare-ups of disability.

Overall, the actual clinical findings and lay statements 
demonstrate that the Veteran's had active motion of the left 
ankle motion in dorsiflexion and plantar flexion, and did not 
meet the definition of "ankylosis."  Clearly, the Veteran's 
left ankle disability did not result in ankylosis in plantar 
flexion between 30 degrees and 40 degrees or in dorsiflexion 
between zero and 10 degrees.

Notably, the Veteran is in receipt of the maximum schedular 
rating based upon limitation of motion under DC 5271.  As such, 
there is no further basis to consider the extent of functional 
impairment pursuant to 38 C.F.R. § 4.40 and 4.45.  Johnston v. 
Brown, 10 Vet. App. 80, 85 (1997).

The Board has also considered entitlement to an increased 
evaluation on other grounds.  The Veteran's prior representative 
requested that VA consider rating the Veteran's service-connected 
left ankle disability under DC 5311 for a muscle injury of the 
Veteran's foot and ankle area.  This is presumably based upon the 
fact that the Veteran underwent reconstructive left ankle 
surgery.  

The Board notes that the provisions of the rating schedule 
governing evaluation of muscle injuries were amended during the 
course of this appeal.  See 62 Fed. Reg. 30235-30240 (June 3, 
1997) (codified at 38 C.F.R. §§ 4.55-4.73 Diagnostic Codes 5301- 
5329; 38 C.F.R. §§ 4.47-4.54, 4.72 were removed and reserved).  
The defined purpose of these changes was to incorporate updates 
in medical terminology, advances in medical science, and to 
clarify ambiguous criteria.  The comments also clarify that these 
were not intended as substantive changes.  62 Fed. Reg. 30235-
30237.

Generally, the rating schedule contemplates muscle injuries as 
being caused by missile damage to the muscles and tendons.  See 
38 C.F.R. § 4.55, 4.56.  While this is not meant to exclude other 
types of muscle injures, such as occurring during corrective 
surgery, the evidence of record does not support that the Veteran 
has any muscle injury to the left ankle. 

In this respect, the Veteran underwent a peroneal tendon ligament 
reconstruction in May 1994 and arthroscopic examination with 
debridement of the left ankle in February 1997.  The subsequent 
medical examinations do not suggest that the Veteran incurred a 
muscle injury.  

In addition, the Board does not find any allegation of "muscle 
injury symptoms" which have not been considered in the 20 
percent rating assigned under DC 5271.  The lay and medical 
evidence of record clearly shows that the Veteran's service-
connected left ankle disability is manifested by continued 
complaints of left ankle pain with limitation of motion 
exacerbated by use.  There is mild muscle atrophy.  The extent of 
functional impairment during flare-ups is considered in this 
rating.  See 38 C.F.R. §§ 4.40, 4.45.  To rate the left ankle 
disability for both muscle injury and limitation of motion would 
result in pyramiding, which is proscribed by regulation.  The 
Board finds that the Veteran's condition is properly evaluated 
based on limitation of motion.

Moreover, the alleged "muscle" injury shows virtually no 
characteristics of a "severe" disability, such as missile 
wound, shattered bone, open comminuted fracture with extensive 
debridement, prolonged infection, sloughing of soft parts, 
intermuscular binding and scarring, inability to keep up with 
work requirements, ragged, depressed, and adherent scars, 
palpation showing loss of deep fascia or muscle substance, or 
soft flabby muscles in wound area, abnormal muscle swelling or 
hardening in contraction, or severe impairment of function.  See 
38 C.F.R. § 4.56(d)(4).

Overall, the Board finds that separate ratings under DC 5271 and 
DC 5311 would violate 38 C.F.R. § 4.14.  See Esteban, 6 Vet. App. 
at 261-62.  Furthermore, the Board finds no basis to elevate the 
Veteran to a 30 percent rating under DC 5311 prior to February 7, 
2002 as there is no credible evidence of an actual injury to MG 
XI and, certainly, no credible evidence of a "severe" muscle 
injury to MG XI to warrant a 30 percent rating.  Post-service 
medical records are found to provide evidence against this 
contention.

The Board has also considered an evaluation under DC 5284 as the 
Veteran's initial ACDUTRA injury involved a Jones fracture of the 
left 5th metatarsal.  Since the injury, the Veteran's complaints 
have primarily involved his left ankle disability.  A November 
1997 VA C&P examination found X-ray evidence of left foot 
osteoporosis with no residual bony deformity.  The examiner 
diagnosed remote fracture of the 5th left metatarsal without 
significant sequelae.   The November 1999 VA C&P examiner also 
indicated that the Veteran's forefoot and midfoot were 
functioning well.  The medical evidence reveals additional 
pathology of the left foot, which includes pes planus and hallux 
valgus deformity, of nonservice-connected origin. 

Quite simply, the persuasive medical evidence shows that the 
Veteran's service-connected Jones fracture of the left 5th 
metatarsal has healed without sequelae and does not result in 
compensable disability under DC 5284.

The Board next notes that, effective February 7, 2002, the RO has 
assigned the maximum 40 percent rating under DC 5270, which 
contemplates 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.  This was 
accomplished in a February 2002 RO rating decision citing only an 
April 2003 VA C&P examination report.  The RO erroneously 
reported that February 7, 2002 was the date of receipt of an 
increased rating claim.

The Board has reviewed the findings of the April 2003 VA C&P 
examination report, which showed left ankle dorsiflexion to 3 
degrees, plantar flexion to 18 degrees, eversion to 5 degrees and 
inversion to 10 degrees.  The ankle was rigid with decreased 
strength, and the examiner found that the left ankle demonstrated 
moderately severe to severe functional loss of range of motion.

Overall, the Board finds that it is unclear as to the basis for 
the RO's increase to a 40 percent rating effective February 7, 
2002.  In the opinion of the Board, the findings from the April 
2003 VA C&P examination report do not establish the Veteran's 
entitlement a 40 percent rating under DC 5270 as the Veteran was 
shown to have active left ankle motion in all planes.  The ankle 
rigidity and limitation of motion is not shown to result in 
abduction, adduction, inversion or eversion deformity.  

In short, ankylosis was not shown and the schedular criteria were 
not met or more nearly approximated.

The Veteran's attorney that the Veteran's left ankle symptoms and 
limitations have been consistent since 1994.  The RO has made a 
favorable factual finding that an increased severity of 
disability has occurred during the time period which the Board 
has no inclination to reverse.  However, the Board, as a final 
trier of fact, is not constrained or bound to accept this factual 
finding by the RO and perpetuate any errors the RO may have 
committed.  McBurney v. Shinseki, 23 Vet. App. 136 (2009).  

On this record, the Board finds that even with consideration of 
the April 2003 VA C&P examination report and subsequent evidence, 
the credible lay and factual evidence demonstrates that the 
Veteran did not meet the criteria for a rating greater than 20 
percent prior to February 7, 2002.  In fact, the most probative 
evidence does not clearly indicate a 40 percent is warranted 
under the diagnostic criteria. 

Since February 7, 2002, the Veteran has been in receipt of the 
maximum 40 percent rating under DC 5270.  In the Board's opinion, 
none of the lay and medical evidence justifies the increased 
disability rating to 40 percent pursuant to the applicable 
diagnostic codes.

Nonetheless, the Board is only concerned as to whether further 
compensation may be awarded since February 7, 2002.  VA 
regulations provide that the combined rating for disabilities of 
an extremity shall not exceed the rating for amputation at the 
elective level, were amputation to be performed.  38 C.F.R. 
§ 4.68.  The regulations cite as an example that combined 
evaluations for disabilities below the knee shall not exceed the 
40 percent evaluation under DC 5165.  The 40 percent rating may 
be further combined with rating for disabilities above the knee 
but not to exceed the above-the-knee amputation elective level.  
Id.

This rule establishes that the Veteran cannot receive a rating in 
excess of 40 percent for his service-connected left ankle 
disability.  Any assertion that the Veteran's left ankle 
disability warrants a rating in excess of 40 percent is precluded 
by the regulations.

To accord justice in an exceptional case where the scheduler 
standards are found to be inadequate, the field station is 
authorized to refer the case to the Chief Benefits Director or 
the Director, Compensation and Pension Service for assignment of 
an extraschedular evaluation commensurate with the average 
earning capacity impairment.  38 C.F.R. § 3.321(b)(1).

The provisions of 38 C.F.R. § 3.321(b) state as follows:

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 this paragraph 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.

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified 
the analytical steps necessary to determine whether referral for 
extraschedular consideration is warranted.  The Court stated that 
the RO or the Board must first determine whether the schedular 
rating criteria reasonably describe the Veteran's disability 
level and symptomatology.  Id. at 115.  If the schedular rating 
criteria do reasonably describe the Veteran's disability level 
and symptomatology, the assigned schedular evaluation is 
adequate, referral for extraschedular consideration is not 
required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does 
not contemplate the Veteran's level of disability and 
symptomatology, then either the RO or the Board must determine 
whether the Veteran's exceptional disability picture includes 
other related factors such as marked interference with employment 
and frequent periods of hospitalization.  Id. at 116.  If this is 
the case, then the RO or the Board must refer the matter to the 
Under Secretary for Benefits or the Director of the Compensation 
and Pension Service for the third step of the analysis, 
determining whether justice requires assignment of an 
extraschedular rating.  Id.

VA's General Counsel has stated that consideration of an extra-
schedular rating under 3.321(b)(1) is only warranted where there 
is evidence that the disability picture presented by the Veteran 
would, in that average case, produce impairment of earning 
capacity beyond that reflected in the rating schedule or where 
evidence shows that the Veteran's service-connected disability 
affects employability in ways not contemplated by the rating 
schedule.  See VAOPGCPREC 6-96 (Aug. 16, 1996).

In Thun, the Court further explained that the actual wages earned 
by a particular veteran are not considered relevant in the 
calculation of the average impairment of earning capacity for a 
disability, and contemplate that veterans receiving benefits may 
experience a greater or lesser impairment of earning capacity 
than average for their disability.  The Thun Court indicated that 
extraschedular consideration cannot be used to undo the 
approximate nature of the rating system created by Congress.

The Board is precluded by regulation from assigning an 
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first 
instance.  However, the Board is not precluded from raising this 
question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and 
addressing referral where circumstances are presented which the 
Director of VA's Compensation and Pension Service might consider 
exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 
(1995).

The Board is aware of the Veteran's complaints as to the effects 
of his service-connected left ankle disability has had on his 
activities of work and daily living.  In the Board's opinion, all 
aspects of the Veteran's left ankle disability are adequately 
encompassed in the assigned schedular ratings.  In this respect, 
the Veteran primarily describes left ankle disability manifested 
by pain, weakness, fatigueability, and lack of endurance 
exacerbated during flare-ups of disability.  He reports 
functional limitations precluding prolonged walking or standing, 
but indicates being fairly comfortable when sitting or lying 
down.  For the entire appeal period, the Veteran has worked at 
the city fire department in an administrative capacity.  The 
Veteran has not reported any lost time from work due to left 
ankle disability.

Overall, the Board finds no unusual aspects of his left ankle 
disability not addressed in the schedular criteria.  As the 
assigned schedular evaluations are adequate, there is no basis 
for extraschedular referral in this case.  See Thun, 22 Vet. App. 
111, 114-15 (2008).  The Board further observes that there is no 
evidence of any unusual or exceptional circumstances, such as 
marked interference with employment or frequent periods of 
hospitalization related to the service-connected left ankle 
disability at issue, that would take the Veteran's case outside 
the norm so as to warrant an extraschedular rating.  Therefore, 
referral by the RO to the Chief Benefits Director of VA's 
Compensation and Pension Service, under 38 C.F.R. § 3.321, is not 
warranted.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).

In sum, the criteria for a 20 percent schedular rating for left 
ankle disability have not been met for any period of time prior 
to February 7, 2002, and the criteria for a rating greater than 
40 percent for left ankle disability since February 7, 2002 have 
not been met for any period of time.  In so deciding, the Board 
has deemed the Veteran's report of left ankle pain, weakness, 
fatigue, limitation of motion and functional impairment as 
competent and credible evidence in support of the claims.  
However, the Board places greater probative weight to the 
clinical findings of VA physicians, who have greater expertise, 
training and precision than the Veteran in evaluating the nature 
and extent of his left ankle disability.  As the preponderance of 
the evidence is against the claims, the benefit of the doubt 
doctrine is not applicable and the claims are denied.  See 
38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 
1365 (Fed. Cir. 2001).

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), 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. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).

The Veteran filed his claim for an increased rating in 1994, 
which is many year prior to the passage of the VCAA.  Thus, 
compliant pre-adjudicatory VCAA notice is an impossibility.  A 
July 2009 RO letter substantially complied with the generic type 
of notice pertinent to the increased rating claim at issue.  
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 
112 (2004); Vazquez- Flores v. Shinseki, 580 F. 3d 1270 (Fed. 
Cir. 2009).

Thereafter, the timing notice deficiency was cured with 
readjudication of the claim in the July 2010 Supplemental 
Statement of the Case.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006);

The Board notes that, in addition to curing the notice deficiency 
with readjudication of the claims, a review of the claims folder 
reveals that the Veteran has had a meaningful opportunity to 
participate in the adjudication of the claims.  For example, the 
Veteran was represented by counsel for most of the appellate 
process.  In October 1999, this attorney identified for the RO 
available evidence relevant to the claims.  In arguments before 
the Board and the Court, the Veteran's attorney identified 
additional diagnostic codes for consideration in adjudicating the 
claims, and made arguments about the need and adequacy of VA 
examination reports as well as a Social and Industrial Survey.  
This attorney was successful in obtaining a favorable Board 
reconsideration decision and Memorandum Decision from the Court.  
Overall, the Board finds that no notice errors in this case has 
resulted in prejudicial harm to the Veteran.  See Shinseki v. 
Sanders, 129 S.Ct.1696 (2009).

VA has a duty to assist the Veteran in the development of the 
claims.  This duty includes assisting the Veteran in the 
procurement of STRs 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 the Veteran's STRs and VA clinical 
records.  The Veteran has not reported obtaining Social Security 
Administration disability benefits.

The Board remanded this claim in September 1999, in part, to 
obtain current VA examination which included a Social and 
Industrial Survey.  The examination reports obtained, dated 
November 1999, March 2000 and November 2000, substantially comply 
with the Board's remand directives.  In a Brief before the Court, 
the Veteran's counsel argued that the November 2000 VA Social and 
Industrial Survey was inadequate for rating purposes under 
38 C.F.R. § 3.321(b).  The Board disagrees.  

Throughout this appeal, the Veteran has worked full-time in a 
sedentary capacity and has not reported any lost time from work 
or significant interference with his employment duties.  The only 
interference reported is his need to take off his shoes and 
elevate his legs at work.  The Veteran has attended multiple VA 
examinations wherein he described his functional limitations, and 
those physicians have described the level of severity of those 
functional limitations.

Apparently, the Veteran's counsel desires a Social Industrial 
Survey which goes into painstaking details regarding the 
Veteran's chronological employment history, wages, loss of work 
time etc.  However, the information provided by the Veteran has 
rendered such an examination as unnecessary.  Quite simply, the 
Veteran has reported working full-time in a sedentary occupation 
with no significant impairment of his employment duties.  Given 
the Veteran's consistent allegations, it would serve no useful 
purpose to obtain any additional examination.  See Soyini v. 
Derwinski, 1 Vet. App. 540 (1991).

The Veteran's attorney has argued that the Board has erred by not 
ordering the RO to consider DCs 5284 and 5311 in adjudicating the 
claims.  The RO has no duty to discuss every single diagnostic 
criteria which may or may not apply to a particular case.  In 
this case, the Veteran's counsel has argued applicability of 
these diagnostic codes and the Board has addressed those 
arguments.  Again, the Board finds no useful purpose would be 
gained by remanding this case on this basis.

Since that last VA examination ordered by the Board, the Veteran 
has been assigned the maximum allowable rating for left ankle 
disability.  As such, there is no duty to provide further medical 
examination on these claims.  See VAOPGCPREC 11-95 (Apr. 7, 
1995).

For the reasons expressed above, the Board finds that no further 
notice or assistance to the Veteran is required to fulfill VA's 
duty to assist him in the development of his claims.  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, 16 Vet. App. 183 (2002).



ORDER

The claim of entitlement to an evaluation in excess of 20 percent 
disabling for a left ankle disability, effective prior to 
February 7, 2002, is denied.

The claim of entitlement to an evaluation in excess of 40 percent 
disabling for a left ankle disability, effective February 7, 
2002, is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs