Citation Nr: 1041908 Decision Date: 11/08/10 Archive Date: 11/18/10 DOCKET NO. 07-31 042A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for residuals of prostate cancer. 2. Entitlement to a rating in excess of 10 percent for residuals of a severed left Achilles tendon for the period prior to April 2, 2009. 3. Entitlement to a rating in excess of 20 percent for residuals of a severed left Achilles tendon for the period beginning April 2, 2009. ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to October 1964 and from January 1965 to January 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that the Veteran requested a Board hearing but failed to report. He subsequently indicated that he would file a motion requesting that the hearing be rescheduled but he failed to do so. Therefore, his request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board also notes that the Veteran apparently contends that the denial of service connection for a variety of disorders that the Veteran believes are secondary to his prostate cancer and/or his residuals of a severed Achilles tendon are part of this appeal. The Veteran is advised that he perfected appeals only with respect to the initial rating that was assigned for his prostate cancer and for the rating assigned for his Achilles tendon injury. If the Veteran wishes to file any new service connection claims, or applications to reopen his service connection claims which were denied, he should do so at the RO. FINDINGS OF FACT 1. Voiding dysfunction is the predominant residual of the Veteran's prostate cancer. His symptoms were not shown to require the use of an appliance or the wearing of absorbent materials that need to be changed more than 4 times per day. 2. Prior to April 2, 2009, the Veteran's residuals of a severed Achilles tendon were not shown to be productive of marked limitation of motion of the ankle or of at least moderately severe disability of the calf muscles. 3. Beginning April 2, 2009, the Veteran's residuals of a severed Achilles tendon were not shown to be productive of severe muscle disability of the calf muscles. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent for residuals of prostate cancer were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.115a, 4.115b, Diagnostic Code 7528 (2010). 2. Prior to April 2, 2009, the criteria for a rating in excess of 10 percent for residuals of a severed Achilles tendon were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, 4.73, Diagnostic Codes 527, 5311 (2010). 3. For the period beginning April 2, 2009, the criteria for a rating in excess of 20 percent for residuals of a severed Achilles tendon were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, 4.73, Diagnostic Codes 527, 5311 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186- 187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 73 Fed. Reg. 23,353-23,356. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter dated in October 2006, prior to the rating decision which is appealed herein, which explained the parameters of VA's duty to assist him with obtaining evidence in support of his claims. The letter also explained what the evidence needed to show in order to establish service connection for a claimed disability and informed the Veteran that in order to receive a higher rating for a disability that is already service connected, he needed to show that it got worse. The letter also explained the manner whereby VA assigns ratings and effective dates for service connected disabilities. The Veteran was also sent a letter in May 2008 that informed him of the specific criteria for rating the residuals of his prostate cancer. Additionally, in August 2008 the Veteran was sent another letter that explained VA's duty to assist him, what the evidence needed to show in order to substantiate a claim for service connection and for an increased rating, and how VA assigns disability ratings and effective dates for service connected disabilities. The Veteran's claim was subsequently readjudicated in an April 2010 supplemental statement of the case (SSOC). Additionally, the Veteran's claim for a higher initial rating for his prostate cancer is a downstream issue from his claim for entitlement to service connection for that disability. The RO granted service connection for prostate cancer and assigned a noncompensable rating. The Veteran then filed a notice of disagreement arguing that he should have received a higher rating. After reviewing his claim the RO increased the Veteran's rating for his residuals of prostate cancer to 40 percent, effective the date of his claim. However, the Veteran remained dissatisfied with this rating. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8- 2003. In this precedential opinion, the General Counsel held that although VA is required to issue a statement of the case (SOC) if the downstream issue is not resolved, 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the Veteran was sent an SOC in September 2007 that addressed the propriety of the initial rating of the Veteran's residuals of prostate cancer. This was also addressed in SSOCs that were sent to the Veteran, the most recent being dated in April 2010. In addition to its duty to provide various notices to claimants, VA also must make reasonable efforts to assist them with obtaining the evidence that is necessary in order to substantiate their claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, private treatment records, and the written contentions of the Veteran. The Veteran was also afforded three VA examinations of his ankle and two VA genitourinary examinations. The examinations adequately documented the symptoms of the Veteran's residuals of prostate cancer and residuals of a severed Achilles tendon. There is no indication that additional evidentiary development is necessary in order to fairly adjudicate the Veteran's claim. For the reasons set forth above, the Board finds that VA satisfied the requirements of the VCAA in this case. II. Higher Ratings Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. 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 rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation for a service-connected disease or injury already has been established and entitlement to an increase in the disability rating is at issue, the present level of disability is of primary importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, 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. The relevant 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. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Initial Rating for Prostate Cancer The Veteran contends that his residuals of prostate cancer are more severe than are contemplated by the currently assigned 40 percent rating for that disability. Malignant neoplasms of the genitourinary system, including prostate cancer, are rated pursuant to 38 C.F.R. § 4.115b, diagnostic code 7528. This diagnostic code provides that a 100 percent rating applies for 6 months after the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures. Thereafter, if there has been no local reoccurrence or metastasis, the disorder is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. The criteria applicable to rating renal and voiding dysfunction are set forth in 38 C.F.R. § 4.115a. A 40 percent rating applies when there is daytime voiding intervals of less than one hour or awakening to void 5 or more times per night or when the voiding dysfunction requires the wearing of absorbent materials that must be changed 2 to 4 times per day. A 60 percent rating applies when the voiding dysfunction requires the use of an appliance or wearing absorbent materials that must be changed more than 4 times per day. Under the alternative criteria applicable to rating renal dysfunction, a 60 percent rating applies when there is constant albuminuria with some edema, a definite decrease in kidney function, or hypertension that is at least 40 percent disabling under diagnostic code 7101. An 80 percent rating applies when there is persistent edema and albuminuria with BUN 40 to 80mg%, or creatnine 40 to 8 mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating applies when regular dialysis is required, or when the disorder precludes more than sedentary activity as a result of persistent edema and albuminuria, or when there is BUN more than 80mg%, creatnine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially the cardiovascular system. A March 2003 private treatment record reflects that the Veteran had prostate cancer that was treated surgically. There was a finding of negative lymph nodes with no obvious capsular penetration. The conclusion was that the Veteran had organ- confined and hopefully cured prostate cancer. By April 2003 the Veteran was "looking and feeling great" and his prostate specific antigen (PSA) was down to .06. The Veteran was afforded a VA genitourinary examination in February 2007. The claims folder was not available at that time and the examiner did not have any of the Veteran's treatment records to review. However the Veteran reported that he had a retropubic prostatectomy and that he had not seen a physician since that time. The Veteran reported that he lost 20 pounds over the last 4 years. He reported that he had nocturia varying between 3 and 6 times per night. If he strained he lost control and becomes incontinent. He denied any dysuria or alterations in stream. He denied having recurrent urinary tract infections and had not been hospitalized for urinary tract infections in the past. Examination showed that the testicles were normal in size and that the Veteran had a good rectal sphincter despite an absent cremasteric reflex. The prostate fossa was empty and there was no unusual induration noted. The Veteran's blood pressure was 120/80 and his heart was in regular sinus rhythm without any murmur. There was no ankle edema and peripheral pulses were palpable. The Veteran's PSA was 0 and there was no active disease. In various written statements that were submitted by the Veteran he contended that since his surgery he experienced urinary incontinence, fatigue, shortness of breath, dizziness, headaches, abdominal discomfort, nausea, constipation, urinary urgency, soreness, swelling, stiffness, and muscle pain. He attributed all of these symptoms to residuals of his prostate cancer. The Veteran's residuals of prostate cancer were reexamined by VA in April 2009. This time, the examiner was able to review the claims file including the Veteran's medical records. At that time, the Veteran reported that he had prostate cancer that was surgically treated in 2003. There were no confirmed recurrences of the prostate cancer. Since that time, however, he experienced urinary frequency, incontinence, constipation, intermittent perineal discomfort, and erectile dysfunction. He also endorsed anorexia and a 10 pound weight loss over the past month. There was no lethargy or weakness reported. The Veteran reported that his daytime voiding intervals were 1 1/4 to 1 1/2 hours during the day and 1 1/2 to 2 hours at night. He reported that his urine stream varied, sometimes being normal and sometimes being significantly diminished. There was no hesitancy or dysuria. The Veteran reported urinary incontinence that required the changing of absorbent materials 3 to 4 times a day when he was out and about. However, he often stayed home to avoid having to use absorbent materials. No appliance was needed. There was no history of recurrent urinary tract infections, renal colic, bladder stones, or acute nephritis. There was one hospitalization for a urinary tract infection in 2003 but none since. The Veteran was not on any special diet and was not taking any medications for genitourinary tract conditions. He did not need treatments with intermittent catheterizations, dilations, or drainage procedures. The examiner opined that, were the Veteran working, his genitourinary problems would severely impact his work because he must suddenly and frequently interrupt his activities to use the bathroom. This circumstance also affects his usual daily activities. Upon examination, the Veteran's blood pressure was 122/75. There was no persistent or intermittent edema of the bilateral lower extremities and no history of dialysis. The Veteran's heart rate and rhythm were regular. There was no evidence of jaundice or icterus. The Veteran's abdomen was soft, non-tender, non- distended and there were normal bowel sounds. A genital examination revealed diminished creamatic reflexes bilaterally. Otherwise, the examination was normal. The digital rectal examination revealed the absence of the prostate with an empty prostatic fossa. The examination was limited because of perirectal muscle spasm. Labs showed a PSA of .04, otherwise the results were within normal limits. The examiner diagnosed prostate cancer with treatment with radical prostatectomy and residuals of prostate cancer consisting of urinary incontinence, detrusor instability, variable urine stream, perineal discomfort, constipation, and erectile dysfunction. The Veteran is currently receiving special monthly compensation for his erectile dysfunction. Insofar as there is no evidence of renal dysfunction, the Veteran's residuals of prostate cancer are rated as voiding dysfunction. Although the rating schedule refers to various types of voiding dysfunction, only the predominant area of dysfunction is considered for rating purposes. 38 C.F.R. § 4.115a. Thus, in order to receive a schedular rating in excess of 40 percent, the Veteran would need to have to have urinary leakage or incontinence that required the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times a day. The Veteran does not use an appliance and he did not report that he had to change his absorbent materials more than 4 times a day. Rather, at his most recent examination, he reported that he had to change his absorbent materials 3 to 4 times per day when he was out and about and that he did not need to wear absorbent materials when he was at home. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 11 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). While the Veteran experiences some intermittent perineal discomfort and constipation that are associated with his residuals of prostate cancer, there was no showing that these symptoms were so severe as to cause the rating schedule to inadequately compensate the Veteran for his residuals of prostate cancer. His primary symptoms involved urinary frequency, urinary incontinence, and variable urine stream. These urinary difficulties are expressly contemplated by the 40 percent rating that is currently assigned for his voiding dysfunction. It is noted that if the Veteran believes that he has developed a distinct secondary gastrointestinal disorder, he may seek service connection for same but that is outside the scope of this appeal. Although the examiner who performed the April 2009 examination indicated that the Veteran's residuals of prostate cancer would severely affect his employment were he not retired, a finding that the evidence before VA presents such an exceptional disability picture that the schedular rating is inadequate is a prerequisite to the consideration of factors such as the effect of a disability on employment or repeated hospitalizations. Id. In any event, insofar as the Veteran is retired there is no actual affect on his employment. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, a rating in excess of 40 percent for residuals of prostate cancer is denied. Consideration of entitlement to a total disability rating by reason of individual unemployability is unnecessary in this case because the Veteran is already in receipt of this benefit. B. Increased Rating for Residuals of a Severed Achilles Tendon The Veteran contends that the residuals of his severed left Achilles tendon are more severe than is encompassed by the 10 percent rating assigned for the period prior to April 2, 2009, and the 20 percent rating assigned for the period beginning April 2, 2009. Prior to April 2, 2009, the Veteran's residuals of a severed left Achilles tendon were rated according to 38 C.F.R. § 4.73 diagnostic code 5311, which addresses injuries to muscle group XI. The function of this muscle group are propulsion, plantar flexion of the foot, stabilization of the arch of the foot, flexion of the toes, and flexion of the knee, depending on the particular muscle affected. A 0 percent rating is assigned for a slight impairment of muscle function, a 10 percent rating is assigned for moderate impairment, a 20 percent rating is assigned for moderately severe impairment, and a 30 percent rating is assigned for severe impairment of muscles in this muscle group. Beginning April 2, 2009, the Veteran's residuals of a severed left Achilles tendon were rated pursuant to 38 C.F.R. 4.71a, diagnostic code 5271 which addresses limited motion of the ankle. A 20 percent rating is assigned for marked limited motion of the ankle. This is the higher schedular rating that is available for limited motion of the ankle. As to the Veteran's residuals of a severed left Achilles tendon first rated as a muscle injury and subsequently rated as limited motion of the ankle, it is noted that he may not receive concurrent separate ratings for both muscle disability and limited motion. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, insofar as muscle injuries affect the function of the associated joints, assigning separate ratings for both limited motion of the ankle and an associated muscle injury would violate the rule against pyramiding that is set forth at 38 C.F.R. § 4.14. Thus, the Veteran's left ankle disability can be rated either as a muscle injury or as limited motion of the ankle, whichever is more favorable to the Veteran, but he cannot receive concurrent separate ratings under both diagnostic codes. (1) Period Prior to April 2, 2009 The Veteran was examined with respect to his claim for a higher rating for his residuals of a severed Achilles tendon in November 2006. At that time, the Veteran reported that his left ankle was beginning to stiffen up, that he had less flexibility, and that he was experiencing pain in his left ankle and calf. Physical examination revealed thickening of the Achilles tendon. The tendon was intact. There was no visible surgical scar and no tissue loss or adhesion. There was no loss of gastrocnemus/soleus muscle function although there was a difference in the circumference of both legs with the left calf muscle being smaller than the right. The circumference of the right leg was 36 centimeters and the left leg was 32 centimeters. The posterior group muscles of the leg were able to move the ankle joint through a normal range of motion with sufficient comfort, endurance, and strength to accomplish activities of daily living. The calf muscle could plantar flex the ankle joint independently through the useful range of pain free motion. Muscle strength was 5 out of 5 on the left side and 4 out of 5 on the right side. The range of motion of the ankle as 13 degrees of dorsiflexion on the right and 10 degrees of dorsiflexion of the left and 50 degrees of plantar flexion on the right and 30 degrees of plantar flexion on the right. The examiner considered these ranges of motion to indicate no clinically significant limitation in the ankle joint's range of motion, nor was there evidence of painful motion, edema, instability, or tenderness. The Veteran was able to rise up on his toes and had a propulsive heel to toe gait with no evidence of a limp. The examiner diagnosed an Achilles tendon rupture with surgical repair and mild atrophy of the left calf muscles with minimal weakness. The examiner assessed the Veteran's residuals of a severed Achilles tendon as causing "no functional impairment." On his notice of disagreement which was received by VA in March 2007 the Veteran reported that he had atrophy of the calf muscle, painful motion and stiffness of the left ankle, and that his left lower extremity was weak, easily fatigued, and caused an abnormal gait. On an undated letter the Veteran indicated that his ankle problems, as well as various other health problems, caused difficulty standing or walking for more than 20 to 30 minutes. The Veteran's residuals of a severed left Achilles tendon were reexamined by VA in January 2008. At that time, the Veteran complained of a "tightness" in his left Achilles tendon and occasional spasms in his left calf muscle when he spent a lot of time on his feet. The left Achilles tendon felt as if it pulled. He also sometimes experienced pain on the bottom of left heel after standing too long as well as hip pain. He wore arch supports and took an over the counter pain reliever. He also reported that staying off his feet helped relieve his symptoms. Examination of the left foot and ankle revealed an increased thickness of the Achilles tendon as it approached its insertion into the posterior aspect of the calceneus. The integrity of the tendon appeared intact. There was a bony prominence at the level of the first and second metatarsal cuneiform joints which was present bilaterally but was more pronounced on the left foot. Range of motion of the left ankle was 7 degrees of dorsiflexion and 35 degrees of plantar flexion. This was within normal limits; however there was slightly diminished range of motion of the left ankle as compared to the right ankle. There was no pain on palpation of the Achilles tendon. There was no evidence of painful motion, edema, weakness, instability, or tenderness. The Veteran was able to rise up on his toes without difficulty. He was ambulatory with a heel to toe gait and no limp. Both feet were maximally pronated throughout the gait cycle. There were no objective functional limitations although the Veteran described pain with prolonged standing. There was some evidence of abnormal weight bearing but this was present on both feet. The Achilles tendon was vertically aligned and there was no pain on manipulation of the Achilles tendon. X-rays of the Veteran's left ankle showed a thickening of the Achilles tendon that represented chronic tendonopathy. This finding was consistent with clinical observations. There was some mild degenerative spurring off the anterior surgiace of the tibia bilaterally. The examiner diagnosed Achilles tendon rupture, status post surgical repair left ankle and mild atrophy of the left calf muscles with minimal weakness. He also diagnosed foot disorders that were unrelated to the Veteran's Achilles tendon injury. The injury was noted to be well healed and the thickening of the tendon did not appear to interfere with lower extremity function. The Veteran's VA treatment records do not show treatment for residuals of the Veteran's severed Achilles tendon during this time period. The evidence does not show that the Veteran met the criteria for a rating in excess of 10 percent for the period prior to April 2, 2009. His left calf muscle disability was no more than moderate. While there was mild atrophy of the left calf muscle, the examiner determined that this caused only minimal weakness and that his residuals of a severed Achilles tendon did not cause any functional impairment other than pain with prolonged standing. While the Veteran indicated that he had an abnormal gait, this assertion is not credible as the VA examiner observed that the Veteran's gait was normal on two separate occasions. Moreover, while the Veteran asserted that he had difficulty standing or walking for more than 30 minutes, he attributed this only in part to the residuals of his severed Achilles tendon. He also reported that hip and back problems contributed to this limitation. Additionally, at the second VA examination the examiner noted that various structural conditions of his feet could affect his knee and hip. The objective findings on examination did not indicate that he had any functional limitations on standing or walking that were caused by his residuals of a severed Achilles tendon although, as noted, the Veteran reported pain with prolonged standing. The Veteran would not receive a higher rating for this period pursuant to diagnostic code 5271, limited motion of the ankle, because at the November 2006 VA examination the examiner determined that there was no clinically significant loss of range of motion of the ankle, and at the January 2008 VA examination the examiner noted that while the range of motion of the Veteran's left ankle was slightly diminished it was still within normal limits. The Board also finds that the Veteran's symptoms did not present such an exceptional disability picture as to render the schedular rating inadequate. The Veteran's mild weakness of the calf muscle was fully contemplated by the rating schedule. 38 C.F.R. § 3.321(b). See also Thun, 11 Vet. App. at 115. The Board considered the benefit of the doubt doctrine. However, the weight of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the period prior to April 2, 2009. See, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). (2) The Period Beginning April 2, 2009 The Veteran's left lower extremity was reexamined by VA on April 2, 2009. At that time the Veteran reported that he had left ankle pain that gradually worsened over the years. He also reported lack of endurance of his left ankle. There was no left ankle region weakness, stiffness, swelling, head, redness, instability, giving way, locking, or fatigability. The Veteran reported taking an over the counter pain reliever to treat his ankle pain. This helped somewhat. The Veteran reported flare ups of ankle pain that occurred about 2 to 3 times a week and which lasted from several hours to a day. He was unable to tolerate heavy lifting or prolonged standing or walking due to his left ankle pain. While he was retired, the examiner believed that these limitations would have significantly impacted his ability to perform his former occupation as a truck driver. Examination of the Veteran's left ankle revealed objective evidence of painful motion, tenderness, and abnormal movement. The Veteran grimaced with some of his left ankle range of motion testing and he was tender over the Achilles tendon region from the insertion at the base of the heel up to its connection to the gastrocnemius/soleus muscle complex of the left calf. The Veteran had limited range of motion of his left ankle. He had 0 to 17 degrees of active plantar flexion with pain at 17 degrees and he had 0 to 22 degrees of passive plantar flexion with pain beginning at 17 degrees. The active range of motion with left ankle dorsiflexion for 0 to 3 degrees with pain occurring at 3 degrees and he had passive range of motion of 0 to 5 degrees with pain beginning at 3 degrees. There was no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use. There was no objective evidence of left ankle edema, effusion, instability, weakness, redness, heat, or guarding of movement. The Veteran walked with a slight limp. There were no callosities, breakdown, or unusual shoe wear patterns. There was no ankylosis. There was no evidence of inflammatory arthritis and con constitutional signs. There was no varus or valgus angulation of the os calcis in relationship to the long axis of the tibia and fibula. X rays showed mild degenerative changes of the left ankle joint with slight spurring off the articular surface of the tibia as well as degenerative changes in the joints of the left foot. There was also mild ossification between the distal tibia and fibula which were suspected to be related to the Veteran's prior injury to the interosseous ligament. The examiner diagnosed residuals of a severed left Achilles tendon and degenerative joint disease that was secondary to those residuals. As noted above, 20 percent is the highest schedular rating that is available for limited motion of the ankle. The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 4.40 and 4.45, which relate to limited motion due to pain, are thus not applicable. See, e.g. Spencer v. West, 13 Vet. App. 376, 382 (2000). Moreover, insofar as arthritis with loss of range of motion is rated according to the diminished motion of the affected joint applying diagnostic code 5003 would not yield a higher rating. Additionally, application of diagnostic code 5311, pursuant to which the Veteran was formally rated, would not yield a higher rating because, in order to receive a 30 percent rating pursuant to that diagnostic code the Veteran would have to have severe muscle injury. There is no evidence of severe muscle injury in this case. Rather, the April 2, 2009 examination indicated that the predominant disability to be pain and limitation of motion of the left ankle. There were no finding related to a severe muscle injury. The Board also finds that the Veteran's symptoms did not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun, 11 Vet. App. at 115. The rating schedule contemplates the Veteran's limitation of motion and pain, which was considered in assigning the 20 percent rating for marked limitation of motion. As previously discussed, a finding that the evidence before VA presents such an exceptional disability picture that the schedular rating is inadequate is a prerequisite to the consideration of factors such as the effect of a disability on employment or repeated hospitalizations. Id. In any event, there is no present effect on the Veteran's employment because he is retired, and there is no evidence of repeated hospitalizations as a result of the injury to the Veteran's Achilles tendon. Moreover, as previously noted, consideration of entitlement to a total disability rating by reason of individual unemployability is unnecessary in this case because the Veteran is already in receipt of this benefit. ORDER A rating in excess of 40 percent for residuals of prostate cancer is denied. A rating in excess of 10 percent for residuals of a severed Achilles tendon for the period prior to April 2, 2009, is denied. A rating in excess of 20 percent for residuals of a severed Achilles tendon for the period beginning April 2, 2009, is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs