Citation Nr: 1127795 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 09-19 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a left hip disability, to include left hip numbness and pain. 2. Entitlement to an initial compensable rating for the residuals of a fracture of the medial malleolus of the right ankle, status post-operative open reduction internal fixation. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from August 1984 to July 1986 and from August 2004 to July 2005. He received, among other things, a Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Los Angeles, California, in which the RO granted service connection for the residuals of a fracture of the medial malleolus of the right ankle, status post-operative open reduction internal fixation (ORIF), and assigned a noncompensable rating; granted service connection for degenerative disc disease of the lumbar spine, and assigned a noncompensable rating, effective from July 18, 2005; denied service connection for a left hip disability, to include left hip numbness and pain; and denied service connection for a right shoulder disability. The Veteran disagreed with the evaluations assigned to his service-connected right ankle and low back disabilities, and with the denial of his claims for service connection for a left hip disability and a right shoulder disability. In a May 2009 rating action, the RO increased the disability rating for the Veteran's service-connected low back disability from noncompensable to 10 percent disabling, effective from May 30, 2007. The RO issued a Statement of the Case (SOC) in May 2009; however, in the Veteran's June 2009 substantive appeal (VA Form 9), he only addressed the issues of entitlement to an initial compensable rating for service-connected right ankle disability; entitlement to service connection for a left hip disability; and entitlement to service connection for a right shoulder disability. See 38 C.F.R. § 20.202 (2010); Ledford v. West, 136 F.3d 776, 770-80 (Fed. Cir. 1998). As the Veteran did not perfect his appeal of the claim for an initial compensable rating for service-connected low back disability from July 18, 2005, to May 29, 2007, and a rating in excess of 10 percent thereafter, this matter is not in appellate status. In April 2011, the Veteran appeared at a Board videoconference hearing. A transcript of the hearing is in the record. At the April 2011 videoconference hearing, the Veteran withdrew from appellate consideration the issue of entitlement to service connection for a right shoulder disability. The Veteran also submitted a private medical statement from L.C.R., M.D., dated in April 2011, in support of his claims. He waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The evidence of record establishes that the Veteran served in combat while he was stationed in Iraq and was injured by an improvised explosive device (IED) in October 2004. 2. The Board accepts the Veteran's assertion that he injured his left hip following the October 2004 IED explosion as credible and consistent with his established combat service. 3. It is at least as likely as not that the Veteran has a left hip disability, to include left hip numbness and pain, that is related to the in-service left hip injury following the IED incident. 4. The Veteran's service-connected right ankle disability, status-post ORIF, is manifested by x-ray evidence of degenerative joint disease and complaints of painful motion, but no objective evidence of ankylosis, malunion of the os calcis or astragalus, or astragalectomy. CONCLUSIONS OF LAW 1. With application of the doctrine of reasonable doubt, service connection for a left hip disability, to include left hip numbness and pain, is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). 2. The criteria for an initial 10 percent evaluation for the residuals of a fracture of the medial malleolus of the right ankle, status post-operative ORIF, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.7, 4.31, 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5271 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of these claims. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the September 2006 letter sent to the Veteran by the RO adequately apprised him of the information and evidence needed to substantiate the claims. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id., at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. At the outset, the Board notes that with respect to the Veteran's claim of entitlement to service connection for a left hip disability, to include left hip numbness and pain, given the favorable outcome as noted below, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). With respect to the Veteran's claim for an initial compensable rating for service-connected right ankle disability, the Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in September 2006 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the September 2006 letter informed him about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did provide such notice to the Veteran prior to the January 2007 RO decision that is the subject of this appeal in its September 2006 letter. With respect to the Dingess requirements, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim, as well as the type of evidence necessary to establish a rating or effective date of an award (see letter from RO, dated in September 2006), and such notice was provided prior to the initial decision of the RO. See Dingess, supra. Accordingly, the RO provided proper VCAA notice at the required time. During the pendency of this appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which pertains to a greater degree of specificity with respect to notice of the criteria necessary for an increased rating. This decision, however, was subsequently vacated by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Also, since the claim on appeal is a downstream issue from that of service connection, Vazquez notice was never required. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The Board finds that the September 2006 letter substantially satisfies the current notification requirements for the claim on appeal. As the Veteran has not indicated any prejudice caused by a content error and no such error is apparent, the Board finds no basis for finding prejudice against the Veteran's appeal of the issue adjudicated in this decision. See Shinseki v. Sanders, 129, S. Ct. 1696 (2009) regarding the rule of prejudicial error. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence, and the Veteran received a VA examination in February 2009, which was thorough in nature and adequate for the purposes of deciding this claim. The aforementioned VA examination revealed findings that are adequate for rating the Veteran's right ankle disability. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal; VA has no further duty to provide an examination or medical opinion. 38 C.F.R. §§ 3.326, 3.327. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. at 384. II. Service Connection Claim Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. 38 C.F.R. § 3.303; see also, e.g., Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). The Veteran served in Iraq from September 27, 2004 to December 8, 2004, and his awards and decorations include the Purple Heart Medal, which establishes that he engaged in combat, and, accordingly, the provisions of 38 U.S.C.A. § 1154(b) are for application. In the case of any veteran who engaged in combat with the enemy in active service, there is a relaxed standard of proof for combat-related claims. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2010). Specifically, if a combat veteran presents satisfactory lay or other evidence of service incurrence or aggravation of a disease or injury, which is consistent with the circumstances or hardships of his service, then an evidentiary presumption of service connection arises and the burden shifts to the government to disprove service incurrence or aggravation by clear and convincing evidence. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). This reduced evidentiary burden relates only to the issue of service incurrence, however, and not to whether the Veteran has a current disability or whether a current disability is linked to the incident in service. See Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999). The Veteran's service treatment records show that in October 2004, he was injured when an IED detonated by the vehicle in which he was riding and he was thrown approximately 20 feet. He was subsequently treated for rib fractures, pulmonary contusion, a right ankle fracture, burns to both wrists, and a left thigh fragment injury. The Veteran underwent a right ankle ORIF. In this case, the Veteran contends that at the time of the IED explosion when he was thrown from his vehicle, he injured his left hip. Specifically, at the April 2011 videoconference hearing, he stated that at the time of the explosion, he had his M16 on his lap and when he was thrown from his vehicle, the M16 "broke across" his left hip. The Veteran indicated that following the injury, he developed chronic pain and numbness in his left hip. He maintained that he currently had a left hip disability that was related to his alleged in-service left hip injury. In February 2009, the Veteran underwent a VA examination. At that time, the examiner reported that according to the Veteran, he had experienced left hip pain since the 2004 IED explosion. The examiner stated that although x-rays of the Veteran's left hip showed no evidence of acute trauma, the Veteran did nevertheless have significant left hip pain which seemed to be a residual from his 2004 injury. The examiner noted that the Veteran's left hip pain was not related to his low back disability. In a private medical statement from Dr. L.C.R., dated in April 2011, Dr. R. stated that according to the Veteran, he had injured his left hip in the 2004 IED explosion. The Veteran noted that he had chronic left hip pain. The physical examination of the Veteran's hip showed that he had marked restriction of the internal rotator of both hip joints. The external rotation was normal and there was no flexion contracture present. There was decreased sensibility to the trochanteric region of the left hip, and the hip abductors were very weak bilaterally. Dr. R. indicated that x-rays of the Veteran's left hip did not show any degenerative changes, fractures, or deformities. The diagnosis was of ankylosis of the left hip. According to Dr. R., the Veteran had restriction of motion of the left hip without physical deformity. A review of the Veteran's service treatment records is negative for any complaints or findings of a left hip disability. Specifically, the records do not include any evidence showing that the Veteran injured his left hip at the time of the IED explosion. Nevertheless, as stated above, the evidence of record reflects that the Veteran engaged in combat and, as such, under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place, and circumstances of such service. In this regard, given that the Veteran's service treatment records confirm the IED explosion with injuries to his ribs, left thigh, and right ankle, the Board finds that it is at least as likely as not that that the Veteran also injured his left hip at the time of the explosion, and that the injury occurred during combat within the meaning of 38 U.S.C.A. § 1154(b). With application of the doctrine of reasonable doubt found in 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, the Board finds that the in-service left hip injury as described by the Veteran is not in dispute. Id. In the April 2011 videoconference hearing, the Veteran testified that following the IED explosion and his left hip injury, he developed chronic numbness and pain in his left hip. The Veteran is competent to report that on which he has personal knowledge or what comes to him from his senses, such as pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In addition, given that the Veteran testified in his April 2011 videoconference hearing that he was a physician's assistant, his contentions can be given significant probative weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Veteran's statements provide credible evidence of continuity of symptomatology (see 38 C.F.R. § 3.303(b)). In this case, the Board recognizes that in the April 2011 private medical statement, Dr. R. diagnosed the Veteran with ankylosis of the left hip even though the Veteran had left hip range of motion, albeit restricted range of motion. Dr. R., however, also stated that the Veteran had decreased sensibility to the trochanteric region of the left hip. This statement supports the Veteran's contention that he has numbness in his left hip. In addition, in the February 2009 VA examination report, the examiner indicated that the Veteran had significant pain in his left hip which seemed to be a residual from his 2004 injury. Although speculative, this opinion supports the Veteran's contention that he has a left hip disability, to include pain, that is related to the October 2004 IED explosion and left hip injury. Thus, given that the Board accepts as true that the Veteran injured his left hip at the time of the in-service IED explosion, and based on the Veteran's credible statements regarding continuous symptoms since discharge, the Board finds that the evidence is at least in equipoise on the nexus question at hand and resolving all reasonable doubt in favor of the Veteran, service connection for a left hip disability, to include numbness and pain, is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303; see also, e.g., Voerth v. West, 13 Vet. App. 117, 120 (1999), Clyburn v. West, 12 Vet. App. 296, 302 (1999). III. Increased Rating Claim Factual Background As previously stated, the Veteran's service treatment records show that in October 2004, he was injured when an IED detonated by the vehicle in which he was riding and he was thrown approximately 20 feet. He was subsequently treated for numerous injuries, including a right ankle fracture. The Veteran underwent a right ankle ORIF. In June 2006, the Veteran filed a claim of entitlement to service connection for the residuals of a right ankle fracture. In a January 2007 rating action, the RO granted service connection for the residuals of a fracture of the medial malleolus of the right ankle, status post-operative ORIF. At that time, the RO assigned a noncompensable disability rating under Diagnostic Code 5271, effective from July 18, 2005, the day after the Veteran's separation from the military. See 38 C.F.R. § 3.400. In February 2009, the Veteran underwent a VA examination. At that time, he stated that he had pain and stiffness in his right ankle. According to the Veteran, he could no longer jog because of the pain. The Veteran indicated that he experienced right ankle pain while he was working; however, he had not missed any work secondary to the pain. He noted that he was able to perform most of his activities of daily living. According to the Veteran, he still underwent physical therapy for his right ankle, and he took Motrin in order to alleviate the right ankle pain. He denied any incapacitating episodes with his ankle. The Veteran reported that he did not use any assistive devices. The physical examination showed that the area where the Veteran indicated that most of his pain was located was in the area of the tibiotalar joint. There was no swelling and there were no open wounds. The Veteran had a healed scar over the medial malleolus. He had no tenderness to palpation over the medial malleolus. In regard to range of motion of the right ankle, dorsiflexion was to 20 degrees and plantar flexion was to 45 degrees. There was no varus or valgus malalignment of the ankle. There was negative drawer test in the ankle. The range of motion was not limited by pain, weakness, incoordination, fatigability, lack of endurance on three repetitions of motion, or flares. X-rays of the right ankle were reported to show a healed fracture of the medial malleolus with two surgical screws in good position. There were degenerative changes of the tibiotalar and talonavicular joints. Following the physical examination and a review of the x-rays, the examiner diagnosed the Veteran as having degenerative joint disease of the right ankle. In the April 2011 videoconference hearing, the Veteran stated that he had chronic pain and limitation of motion in his right ankle. In addition, walking up and down stairs, and bending aggravated his service-connected right ankle disability. In a private medical statement from Dr. L.C.R., dated in April 2011, Dr. R. stated that a recent examination of the Veteran's right ankle showed that the Veteran had limitation of the movement of the ankle. Dorsiflexion was limited to 15/20 degrees. There was no restriction of motion in plantar flexion. There was also no focal tenderness to palpation and no erythema. Dr. R. diagnosed the Veteran with ankylosis of the right ankle. Analysis Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) codified in 38 C.F.R. Part 4 (2010), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with the impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2010). Regulations require that where there is a question as to which of two evaluations is to 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 (2010). In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2010). As the Veteran has taken issue with the initial rating assigned following the grant of service connection, separate ratings may be assigned for separate periods of time based on the facts found-a practice known as "staged" rating. Fenderson v. West, 12 Vet. App. 119 (1999). Thus, the Board must evaluate the relevant evidence since July 18, 2005. The RO has assigned a noncompensable disability rating under Diagnostic Code 5271 for the Veteran's service- connected residuals of a fracture of the medial malleolus of the right ankle, status post-operative ORIF. Arthritis due to trauma under Diagnostic Code 5010 substantiated by x-ray findings is rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2010). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. In the absence of limitation of motion, a 10 percent rating is assigned when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5271 provides rating criteria for rating limitation of motion of the ankle. Moderate limitation is rated as 10 percent disabling. Marked limitation is rated as 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In order to warrant the assignment of a 30 percent disability evaluation, there would have to be ankle ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Words such as "slight," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. It should also be noted that use of such terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6. Plate II, located in 38 C.F.R. § 4.71, indicates that full ankle dorsiflexion is from 0 to 20 degrees and that full ankle plantar flexion is from 0 to 45 degrees. VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59, provide for consideration of a functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss, however, must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40 (2010). In the instant case, the Veteran contends that his right ankle disability is more disabling than currently evaluated. He indicates that he has constant pain in his right ankle that is aggravated by prolonged bending and walking. In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease or disability or an event. Symptoms, however, must be viewed in conjunction with the objective medical evidence of record. Espiritu, 2 Vet. App. at 492 (1992). In this case, the Board recognizes that in the April 2011 private medical statement, Dr. R. diagnosed the Veteran with ankylosis of the right ankle. In this regard, "ankylosis" is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Given that the Veteran had full range of motion of the right ankle at the time of his February 2009 VA examination, and in the April 2011 examination by Dr. R., he had full plantar flexion and dorsiflexion only limited to 15/20 degrees, he clearly does not have ankylosis of the right ankle. Thus, the Board finds that there is no objective medical evidence of ankylosis of the right ankle. Accordingly, an evaluation under Diagnostic Code 5270 is not appropriate and cannot be the basis for assigning a compensable disability evaluation. The Board also finds that in light of the above, a compensable evaluation is not warranted under Diagnostic Code 5271, as there is no evidence of moderate limitation of right ankle motion. The Board, however, has also considered whether a higher evaluation may be granted on the basis of functional limitation due to weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2010); DeLuca, supra. As indicated, VA regulations further provide regarding painful motion due to arthritis that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Here, although the Veteran's exhibited dorsiflexion and plantar flexion in his right ankle does not rise to the level of "moderate" limitation of motion, resolving any doubt in his favor, the x-ray evidence of healed fracture of the medial malleolus with two surgical screws in good position, degenerative changes of the tibiotalar and talonavicular joints, and his complaints of chronic pain in his right ankle, establishes entitlement to a 10 percent evaluation, pursuant to 38 C.F.R. § 4.45 (2010). See also, 38 C.F.R. §§ 3.102, 4.3. Nevertheless, an evaluation in excess of 10 percent is not warranted for the right ankle disability, as there is no evidence of marked limitation of motion, ankylosis, malunion of the os calcis or astragalus, or astragalectomy. See Diagnostic Codes 5270-5274 (2010). Accordingly, an initial evaluation of 10 percent for the residuals of a fracture of the medial malleolus of the right ankle, status post-operative ORIF, is warranted for the entire period since the award of service connection. IV. Extraschedular Rating 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) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. 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 extra- schedular 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 Board finds that an initial evaluation of 10 percent for the residuals of a fracture of the medial malleolus of the right ankle, status post-operative ORIF, is warranted for the entire period since the award of service connection. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected right ankle disability, but the medical evidence reflects that those manifestations are not present in this case. In addition, the record does not reflect that the Veteran has required any hospitalizations for his right ankle disability. There is also no indication in the record that the right ankle disability markedly interferes with his employment or daily activities, beyond what is contemplated in the rating schedule. In the February 2009 VA examination report, the examiner stated that the Veteran had not missed any work secondary to his right ankle pain. For these reasons, a referral for an extra-schedular rating is not warranted. ORDER Entitlement to service connection for a left hip disability, to include left hip numbness and pain, is granted subject to the regulations governing the payment of monetary benefits. A rating of 10 percent for the residuals of a fracture of the medial malleolus of the right ankle, status post-operative ORIF, but no more than 10 percent, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs