Citation Nr: 1037010 Decision Date: 09/29/10 Archive Date: 10/05/10 DOCKET NO. 06-18 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating in excess of 20 percent for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1967 and May 1975 to May 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, increased the Veteran's service-connected left ankle disability to 20 percent disabling, effective August 2005. The Veteran expresses his disagreement with the current disability evaluation. In July 2009, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's service-connected left ankle disability is manifested by marked limitation of motion with no evidence of ankylosis. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the Veteran's service-connected left ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code 5271 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA 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. In this case, the RO sent a letter to the Veteran in October 2005 with the VCAA notice requirements for his increased rating claim. In the letter, the Veteran was informed that the evidence necessary to substantiate the claim for an increased evaluation would be evidence showing that his disability was worse than the current evaluation contemplates. The letter also informed the Veteran that he must provide medical or lay evidence demonstrating a worsening of his disability and the impact on his employment and daily life, which can also be substantiated by sending statements from other individuals who are able to describe in what manner the disabilities have become worse. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The letter stated that he would need to give VA enough information about the records so that it could obtain them for him. See also the July 2009 VCAA letter. In addition to the foregoing analysis, to whatever extent the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. Since the claim is being denied, any such effective date question is moot. The Veteran has had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA obtained the Veteran's service treatment records, VA outpatient treatment records from September 1993 to February 2007, and private treatment records from January 1994 to March 2007. The Veteran was also provided VA examinations in connection with his increased rating claim, which are found to be adequate for rating purposes. The examiners reviewed the Veteran's medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board finds that the VA examination reports are probative. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. II. Decision The Veteran contends that his service-connected left ankle disability is worse than the current evaluation contemplates. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 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 concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (2009); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is noted that in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2009). Throughout the rating period on appeal, the Veteran's service- connected left ankle disability has been rated as 20 percent disabling under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent rating is prescribed for moderate limitation of motion of the ankle, and a 20 percent rating is prescribed for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2009). Normal ankle dorsiflexion is to 20 degrees, and normal ankle plantar flexion is to 45 degrees. 38 C.F.R. § 4.71, Plate II (2009). After reviewing the evidence of record, the Board finds no support for an evaluation in excess of 20 percent for the Veteran's service-connected left ankle disability. In the first instance, the Board notes that the Veteran is presently receiving the maximum available rating under Diagnostic Code 5271; therefore, Diagnostic Code 5271 does not assist him in obtaining a higher evaluation. The Board must consider evaluation of the Veteran's service-connected left ankle disability under all potentially appropriate codes pertaining to the ankle. As such, in order to receive the next-higher 30 percent evaluation, the Veteran must demonstrate anklyosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees, according to Diagnostic Code 5270. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. To that end, there is no evidence of ankylosis of the left ankle, which is immobility and consolidation of a joint. See Dorland's Illustrated Medical Dictionary 86 (28th ed., 1994). At the November 2005 VA examination, range of motion testing revealed flexion to 30 degrees with pain present between 30 and 40 degrees, dorsiflexion to 10 degrees with pain, inversion to 20 degrees with pain, and eversion to 20 degrees with pain. Similarly, range of motion testing conducted at the January 2010 VA examination showed dorsiflexion to 10 degrees, plantar flexion to 45 degrees, inversion to 20 degrees, and eversion to 10 degrees. VA outpatient treatment records reflect complaints of chronic pain in the left ankle with a diagnosis of polyarthralgia. See May 2006 VA outpatient treatment notes. Thus, while the Veteran may have some limited motion as noted by the findings in both VA examination reports of record, he does not have ankylosis of the left ankle and Diagnostic Code 5270 is not for application in this case. Therefore, a higher rating is not warranted for the Veteran's service-connected left ankle disability. With respect to the possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40, 4.45, the Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204- 205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). The Board notes that the findings do not support an increased evaluation due to functional loss. Although the Veteran has complained of pain and significant limitation of motion, the VA examiners of record found no additional functional limitation due to pain, weakness, fatigability, or incoordination. Specifically, during the November 2005 VA examination, the Veteran reported chronic daily pain twice a week, along with his left ankle giving way once a month, occasional swelling associated with the giving way and instability. He rated the pain between a 4 and 6 out of 10 in terms of intensity, decreasing to 3 out of 10 with medication. After physical examination of the left ankle, the VA examiner concluded that there was no additional limitation of the joint function by pain, fatigue, weakness, lack of endurance, or incoordination. Similarly, the January 2010 VA examination report notes the Veteran's complaints of pain, weakness, stiffness, and instability in the left ankle. However, the VA examiner noted that the Veteran was able to perform three repetitive range of motion exercise with his left ankle, and concluded that there was no further functional limitation due to fatigue, weakness, lack of endurance, or incoordination. There is no indication that pain, due to the Veteran's disability has caused functional loss greater than that contemplated by the 20 percent evaluation assigned. Therefore, an increased evaluation is not warranted based on application of 38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has also considered whether the Veteran is entitled to a "staged" rating for his service-connected left ankle disability, as the Court indicated can be done in this type of case. See Hart v. Mansfield, supra. However, upon reviewing the longitudinal record in this case, we find that at no time during the rating period on appeal has the service-connected left ankle disability has been more disabling than as currently rated under the present decision. Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2009); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2009) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation in this case is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected left ankle disability. Moreover, the evidence does not demonstrate other related factors. The Veteran has not required frequent hospitalization due to his service-connected left ankle disability. Moreover, marked interference with employment has not been shown. In the absence of any additional factors, the RO's failure to consider or to refer this issue for consideration of an extraschedular rating was not prejudicial. The Veteran is competent to report his symptoms. The Board does not doubt the sincerity in the Veteran's belief that his disability is worse than the 20 percent evaluation; however, the objective medical evidence does not support the contention for a higher evaluation. The Board finds that the preponderance of the evidence is against the claim for a rating in excess of 20 percent for his service-connected left ankle disability, and the benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an increased rating in excess of 20 percent for a left ankle disability is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs