Citation Nr: 1229489 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 09-27 807A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a rating in excess of 10 percent prior to April 29, 2011, and in excess of 30 percent from April 29, 2011, for residuals of an injury of the distal end of the left fibula. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to October 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In March 2011, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. The case has now been returned to the Board for further appellate action and the Board is satisfied that the actions directed in the remand have been performed. Pursuant to that remand, an April 2012 rating decision increased the Veteran's disability rating for residuals of an injury of the distal end of the left fibula, to 30 percent disabling, effective April 29, 2011. This action did not satisfy the Veteran's appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The RO also granted a separate noncompensable rating for a scar on the lower left leg, effective August 24, 2007; and a separate 10 percent rating for a tender scar of the lower left leg, effective April 20, 2011. However, the Veteran has appealed neither the ratings nor effective dates for these separate ratings. The Board has limited its consideration accordingly and has characterized the issue on appeal as reflected on the title page. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional VA treatment records that have been considered by the RO, as reflected in the April 2012 supplemental statement of the case, and will be considered by the Board in this appeal. The issues of entitlement to service connection for pes planus of the left foot and a sprained metatarsal joint of the left foot, to include on a secondary basis, are raised by the record, specifically by the April 2011 VA examination report. These issues have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to April 29, 2011, the Veteran's residuals of an injury of the distal end of the left fibula were manifested by moderate disability of the left foot. 2. From April 29, 2011, the Veteran's residuals of an injury of the distal end of the left fibula have been manifested by severe disability of the left foot. 3. Throughout the entire period on appeal, the Veteran's residuals of an injury of the distal end of the left fibula have been manifested by moderate limitation of motion of the left ankle. CONCLUSIONS OF LAW 1. Prior to April 29, 2011, the criteria for a rating in excess of 10 percent for foot impairment due to the residuals of an injury of the distal end of the left fibula, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2011). 2. From April 29, 2011, the criteria for a rating in excess of 30 percent for foot impairment due to the residuals of an injury of the distal end of the left fibula, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2011). 3. The criteria for a separate 10 percent rating, but not higher, for limitation of motion of the left ankle due to the residuals of an injury of the distal end of the left fibula have been met for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to increased ratings for residuals of an injury of the distal end of the left fibula. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided adequate VCAA notice in an October 2007 letter, prior to the January 2008 rating decision on appeal. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. Service treatment records and pertinent post-service medical records have been obtained, and the Veteran was afforded an appropriate VA examination in September 2007. Pursuant to the Board's March 2011 remand, the Veteran was also afforded a VA examination in April 2011. The Board has reviewed the examination report and has determined that it is in compliance with the Board's directive. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In sum, the duties to notify and assist have been satisfied, and the Board will accordingly address the merits of the claim. General Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2011). 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2011). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more of less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. The Veteran was originally awarded service connection for residuals of a left foot injury and assigned a noncompensable rating, effective October 27, 1972, in a November 1972 rating decision. A February 1973 rating decision characterized the Veteran's service-connected left foot disability as residuals of an old injury, refractory, distal end of the left fibula, and assigned a 10 percent rating, effective October 27, 1972. An April 2012 rating decision assigned a 30 percent rating, effective April 29, 2011. The Veteran's service-connected residuals of an injury of the distal end of the left fibula are rated under Diagnostic Code 5284 (foot injuries, other). Under Diagnostic Code 5284, a 10 percent disability rating is warranted for moderate foot injury; a 20 percent disability rating is warranted for moderately severe foot injury; a 30 percent disability rating is warranted for severe foot injury; and a maximum 40 percent disability rating is warranted when there is actual loss of use of the foot. 38 C.F.R. § 4.71a. The terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Other diagnostic codes relating to the foot are Diagnostic Code 5277 (bilateral weak foot); Diagnostic Code 5278 (clawfoot); Diagnostic Code 5279 (anterior metatarsalgia); and Diagnostic Code 5280 (unilateral hallux valgus); Diagnostic Code 5281 (unilateral, severe, hallux rigidus); Diagnostic Code 5282 (hammer toe); and Diagnostic Code 5283 (malunion or nonunion of tarsal or metatarsal bones). As noted below, these conditions are not shown on examination and application of these diagnostic codes is not warranted. While the record reflects diagnoses of pes planus of the left foot (contemplated by Diagnostic Code 5276) service connection is not in effect for the pes planus. As noted above, the Board has referred the issue of entitlement to service connection for pes planus of the left foot to the AOJ for consideration. Moderate limitation of motion of an ankle warrants a 10 percent evaluation, while marked limitation of motion of an ankle warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The terms "moderate" and "marked" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. For reference, under VA rating criteria normal ranges of motion of the ankle are as follows: dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Other diagnostic codes relating to the ankle are Diagnostic Code 5270 (ankylosis of ankle); Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint); Diagnostic Code 5273 (malunion of os calcis or astragalus); and Diagnostic Code 5274 (astragalectomy). As noted below, these conditions are not shown on examination and application of these diagnostic codes is not warranted. As regards Diagnostic Code 5262 (malunion or nonunion of the tibia and fibula), while the Board notes that the Veteran and his representative have asserted that this is the most appropriate diagnostic code to rate the Veteran's residuals of an injury of the distal end of the left fibula, as discussed below, the record does not reflect any diagnosis or clinical findings of malunion or nonunion of the tibia or fibula. Specifically, on April 2011 VA examination there was no evidence of malunion or nonunion of the left fibula. Accordingly, Diagnostic Code 5262 is not for application. Private treatment records include an October 2006 report which reflects an apparent injury to the plantar aspect of the Veteran's left foot that occurred during stretching exercises during physical therapy for a left hip disability. He described a constant aching sensation over the medial portion of his arch and plantar aspect of the [left] foot. He complained of chronic pain over the dorsum of his [left] foot and lateral aspect of his [left] leg since undergoing ankle surgery over twenty years ago. Pain was rated a 4 out of 10 on a Visual Analogue scale. The Veteran stated that he continued to work without limitations in his activities of daily living. On examination, strength in the lower extremities was 5/5 in all muscle groups. Plantar flexion of the left ankle was within normal limits. Dorsiflexion elicited pain over the plantar aspect of the foot, while palpation of the plantar aspect of the foot was unremarkable. Range of motion of the left ankle was full and a sensory examination was unremarkable. On VA joints examination in September 2007, the Veteran presented with complaints of left ankle discomfort aggravated by prolonged standing and walking. He stated that he twisted his left ankle during service in 1969 and was treated with pain medication. He was later diagnosed with a tendon injury of the left ankle and underwent peroneal tendon reconstruction at the left ankle joint. The Veteran denied any history of fracture or dislocation of the ankle joint or distal fibula. On examination, the Veteran was able to walk without any assistive device. Gait and posture were normal. He was able to walk on his heel and toes. Examination of the left leg and left ankle revealed a well-healed scar on the lateral and distal part of the leg and encircling below the lateral malleolus of the left ankle. There was no localized tenderness, swelling, deformity, or instability present. Range of motion of the left ankle was 15 degrees dorsiflexion and 30 degrees plantar flexion; with 5 degrees eversion and 25 degrees inversion. There was no pain in range of motion or any loss of motion on repetitive use times three. Anterior, posterior, and drawer signs were negative. The examiner noted that a March 2007 X-ray examination of the Veteran's left ankle was negative for any evidence of post-traumatic arthritis. The tibial patella joint was intact with mild soft tissue swelling around the ankle and some deformity distal and consistent with an old injury. The Veteran was diagnosed with a healed left ankle tendon injury. The examiner stated that prolonged standing and walking was limited due to discomfort in the left ankle. However, there was no evidence of additional limitation due to pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination, or flare-up, nor was there evidence of adverse impact in activities of daily living or on the Veteran's occupation. VA treatment records include a September 2008 report which reflects that the Veteran denied any swelling of the feet or ankles. Examination of the extremities was symmetrical without deformity or atrophy and deep tendon reflexes (DTRs) were +2, equal, and symmetrical, without calf tenderness. Peripheral pulses were 2+ bilaterally. In February 2009, the Veteran complained of left ankle and foot pain due to a training accident during service. On neurological examination, sensorium and coordination were intact and DTRs were normoactive and symmetrical. Motor examination disclosed that range of motion was WFL (within normal limits) in all joints and strength was 5/5 throughout. There was mild peroneal atrophy without evidence of edema or joint crepitus. A December 2009 report reflects the Veteran's complaints of chronic left foot pain due to the late effects of a fibular injury in 1972. He had pes planus with clinical evidence of peroneal and posterior tibial tendonitis. On examination, DTRs were intact. Muscle strength was 3-4/5 bilaterally, with pes planus without pronation. No ankle swelling was noted, but there was ankle strain with peroneal strain/tendonitis with slight pain on range of motion. The assessment was left ankle strain, pronation, and peroneal tendonitis. VA treatment records include a January 2010 report which reflects an improvement of the Veteran's overall level of pain since his last clinic visit. It was noted that he was provided a left ankle brace in December 2009. He noted much less swelling in his foot and ankle with less tenderness along the lateral aspect of the foot and ankle. The impression included chronic nociceptive pain due to late effects of left fibula injury status post surgical repair in 1972, pes planus of the left foot, and recurrent peroneal and posterior tibial tendonitis. A March 2010 X-ray examination of the left ankle noted unchanged cystic changes in the distal fibula. There was no acute fracture, dislocation, or soft tissue swelling. Accessory ossicles posterior to the talus and plantar to the calcaneocuboid joint were noted. A March 2010 report reflects complaints of recent swelling of the left leg with pain posterior and lateral to the left knee that increased with walking. The Veteran denied any trauma. It was noted that he had lower leg extremity surgery in the distant past after which he experienced periodic swelling in his left ankle and most recently in his entire leg. Examination of the lower left extremity revealed trace edema and mild tenderness to palpation of the left knee. The diagnosis was resolved left leg swelling. VA treatment records include a February 2011 report which reflects the Veteran's report of well-controlled left ankle pain. It was noted that he had worn down his left ankle brace and was in need of a replacement brace, but was able to perform his work duties as a computer network specialist. His examination was essentially unchanged from prior visits. With regard to the left ankle, the impression was chronic nociceptive pain due to the late effects of left fibula status post surgical repair in 1972. Pursuant to the Board's March 2011 remand, the Veteran was afforded a VA examination of the left fibula, foot, and ankle in April 2011. With regard to the left fibula, he presented with a history of a left fibula fracture that was discovered due to a persistent complaint of pain and swelling. There was no history of osteomyelitis of the left fibula. The Veteran did not have any hospitalization for the fibula fracture, but had undergone surgery and hospitalization for reconstruction of the left ankle ligaments. He complained of pain, swelling, and stiffness of the left lower leg, but denied any history of locking. He took Hydrocodone for pain. There was no history of a flare-up of bone disease or recurrence of the fracture. He occasionally used a cane to assist with ambulation and used a left ankle brace and left shoe inserts which provided some relief. There was no history of neoplasms of the left fibula. The Veteran was able to perform activities of daily living and was able to perform his usual occupation as a computer network specialist. On examination of the left fibula, there was no evidence of shortening or angulation, nor was there any evidence of malunion or nonunion or false joint. There were no signs of infection, like redness, heat, or drainage. Range of motion of the left ankle was 0 to 10 degrees dorsiflexion and 0 to 40 degrees plantar flexion. There was additional functional loss due to pain, weakness, and lack of endurance after repetitive use time three. The major impact was due to the lack of endurance. The additional functional loss could not be measured in degrees. The Veteran walked with a moderately severe left antalgic gait and there was a functional limitation on standing and walking; walking was limited to two blocks and standing was limited to 15 minutes. There were no calluses or skin breakdown, ankylosis, constitutional signs of bone disease, genu recurvatum, malunion of the os calcis or astragalus, or history of neoplasms of the left fibula. X-ray examination of the tibia and fibula revealed cystic changes in the distal fibula, unchanged. There were no acute fractures or dislocations. Joint spaces were maintained and soft tissues were normal. The examiner noted that X-rays of the left ankle in May 1999 and March 2007 showed deformity of the distal end of the fibula without evidence of acute fractures. The examiner diagnosed a fracture of the left distal fibula and opined that the current level of impairment was moderately severe. With regard to the left foot, the Veteran complained of pain and swelling since his injury during basic training in 1969. Examination of the left foot revealed pain along the longitudinal arch and along the tarsometatarsal joint. There was also pain on manipulation of the left foot. He had limited pronation and supination of the left foot. He could not actively evert his left foot and walked with a moderately severe antalgic gait. There were no calluses or skin breakdown, hammertoes, clawfoot deformities, or hallux valgus deformity. The Achilles tendon alignment was normal, as well as the forefoot and mid-foot alignment. The examiner diagnosed pes planus and a sprained tarsometatarsal joint of the left foot and opined that the current level of impairment was moderately severe. With regard to the left ankle, the Veteran complained of pain, swelling, and instability related to an injury during basic training in 1969. X-rays of the left ankle in February 1972 revealed instability. At that time, he underwent a Watson-Jones procedure for reconstruction of the lateral ankle ligament. He complained of pain, stiffness, and tenderness of the left ankle, but there were no episodes of dislocations or subluxations. There were no signs of inflammation like heat, redness, or drainage. There was no history of flare-ups or incapacitating episodes in the past 12 months. The Veteran occasionally used a cane for ambulation and wore an ankle brace daily which provided support and decreased pain. There were no constitutional symptoms of inflammatory arthritis. He was able to perform his usual occupation and activities of daily living. While there was a functional limitation on standing and walking, he was able to drive. On examination of the left ankle, range of motion was 0 to 10 degrees dorsiflexion and 0 to 40 degrees plantar flexion. During active range of motion, there was severe pain, effusion of the left ankle, and marked tenderness in the lateral ankle in the area of the incision scar. There was additional functional loss of range of motion due to pain, weakness, and lack of endurance after repetitive use times three. The major impact was due to the lack of endurance and the additional functional loss could not be measured in degrees. Ligaments were stable and there was no drainage of an abnormal mass or ankylosis of the left ankle. Leg lengths were equal. There were no constitutional signs of inflammatory arthritis or history of neoplasms. The Veteran walked with a moderately severe left antalgic gait. The Veteran did not have any prosthetic implant in his left ankle. An X-ray examination of the left ankle indicated torn ligaments, but there was no evidence of fracture or dislocation. The ankle mortise was preserved and unstressed. No significant degenerative changes were seen. Changes were again identified in the distal fibula which were stable. There was a calcified density immediately inferior to the anterior aspect of the calcaneus which likely represented a stable ossicle. A small superior calcaneal spur was noted. The examiner diagnosed a torn left lateral ankle ligament with instability and opined that the current level of left ankle impairment was severe. VA treatment records include a May 2011 report which shows that the left ankle brace fit well and provided adequate support. Additional records dated through March 2012 indicate treatment of the Veteran's non-service connected left knee disability. Prior to April 29, 2011 For the period prior to April 29, 2011, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for residuals of an injury of the distal end of the left fibula, under Diagnostic Code 5284. In this regard, on VA examination in September 2007, he was able to walk on his heel and toes without any assistive device and the Veteran reported less swelling in his foot. VA treatment records dated in September 2008 reflect that the Veteran denied any swelling in his feet. In December 2009, he reported less swelling and tenderness along the lateral aspect of the foot. Therefore, the Board finds that the Veteran's disability picture, when considered as a whole, does not more nearly approximate a moderately severe foot injury as is required for a higher rating of 20 percent under Diagnostic Code 5284. Thus, the Board concludes that the Veteran's disability picture more nearly approximates a moderate foot injury under Diagnostic Code 5284. Accordingly, the criteria for a rating in excess of 10 percent are not met. The Board finds, however, that the Veteran is entitled to a separate 10 percent rating for moderate limitation of motion of the left ankle under Diagnostic Code 5271. In this regard, on VA examination in September 2007, range of motion of the left ankle was 15 degrees dorsiflexion and 30 degrees plantar flexion; with 5 degrees eversion and 25 degrees inversion. Anterior, posterior, and drawer signs were negative. However, the Board finds that the Veteran is not entitled to a separate rating in excess of 10 percent under Diagnostic Code 5271. In this regard, while the Veteran wore a left ankle brace, the evidence reflects only moderate limitation of motion of the left ankle. Therefore, the Board finds that the Veteran's left ankle disability picture, when considered as a whole, does not more nearly approximate marked limitation of motion of the left ankle, as required for a higher rating of 20 percent under Diagnostic Code 5271. Accordingly, the criteria for a separate rating in excess of 10 percent are not met. From April 29, 2011 The Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent for the period from April 29, 2011, for residuals of an injury of the distal end of the left fibula, under Diagnostic Code 5284. In this regard, on an April 2011 VA examination, the Veteran walked with a moderately severe left antalgic gait and the examiner opined that the current level of impairment of the left foot was severe. Therefore, the Board finds that the Veteran's disability picture, when considered as a whole, more nearly approximates that of a severe disability of the left foot. As there was no evidence of loss of use of the left foot on the most recent VA examination, the Veteran is not entitled to the maximum rating of 40 percent under Diagnostic Code 5284. The Board finds, however, that the Veteran is entitled to a separate 10 percent rating for moderate limitation of motion of the left ankle under Diagnostic Code 5271. In this regard, on VA examination in April 2011, the examiner diagnosed a fracture of the left distal fibula and opined that the current level of impairment was moderately severe. The examiner also diagnosed a torn left lateral ankle ligament with instability and opined that the current level of impairment was severe. However, range of motion of the left ankle was only moderately limited by 0 to 10 degrees dorsiflexion and 0 to 40 degrees plantar flexion. Therefore, the Board finds that the Veteran is not entitled to a separate rating in excess of 10 percent under Diagnostic Code 5271. In this regard, while the Veteran wears a left ankle brace, occasionally uses a brace for ambulation, and has a moderately severe left antalgic gait, the evidence reflects only moderate limitation of motion of the left ankle. Therefore, the Board finds that the Veteran's left ankle disability picture, when considered as a whole, does not more nearly approximate marked limitation of motion of the left ankle, as required for a higher rating of 20 percent under Diagnostic Code 5271. Accordingly, the criteria for a separate rating in excess of 10 percent are not met. The Board has considered additional functional limitation due to factors such as pain and weakness throughout the entire appeal period. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, supra. However, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. In this regard, on September 2007 VA examination, there was no pain on range of motion of the left ankle or loss of motion on a repeated maneuver times three. While prolonged standing and walking were limited due to discomfort in the left ankle, there was no evidence of additional limitation due to pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination, or flare-up. At the April 2011 VA examination, the Veteran reported that he wears a left ankle brace and occasionally uses a cane to assist with ambulation. Range of motion testing revealed additional functional loss of range of motion due to pain, weakness, and lack of endurance after repetitive use times three; the major impact was due to the lack of endurance and the additional functional loss could be measured in degrees. However, the limitation of motion and functional loss due to pain are contemplated in the separate 10 percent rating under Diagnostic Code 5271. Even affording the Veteran full credibility in reporting such symptoms, the Veteran's disability picture does not more nearly approximate the criteria of "marked" limitation of motion of the left ankle warranting a higher rating of 20 percent under Diagnostic Code 5271 during the period prior to or since April 29, 2011. Consideration has been given to assigning additional staged ratings; however, at no time during the periods in question has the disability warranted more than the assigned ratings. The Board has also considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the disabling manifestations of the service-connected disability are contemplated by the schedular criteria. The Board acknowledges that instability of the ankle is not contemplated under the schedular criteria, but the Board has no reason to believe that the Veteran's instability is compensably disabling. In this regard, the Board notes that knee instability is considered compensably disabling under the Rating Schedule but there is no Diagnostic Code authorizing a compensable rating for instability of an ankle. In addition, there is no other indication in the record that the average impairment from the disability would be in excess of that contemplated by the assigned ratings, to include the separate rating granted herein. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in arriving at the determinations above the Board has considered not only the medical evidence but also the lay evidence presented by the Veteran in the form of his correspondence to VA, statements from his representative, and statements made during VA examinations. As a layperson, the Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording this lay evidence full competence and credibility, such lay evidence does not support a schedular rating higher than those currently awarded for the period prior to April 29, 2011, and from April 29, 2011. ORDER The Board having determined that the residuals of an injury of the distal end of the left fibula warrant a 10 percent rating for ankle impairment throughout the period on appeal, a 10 percent rating for foot impairment prior to April 29, 2011, and a 30 percent rating for foot impairment from April 29, 2011, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs