Citation Nr: 1302314 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 11-15 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for residuals of a right ankle injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from October 1954 to April 1956. This matter comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which effectuated a June 2010 Board decision that granted service connection for the residuals of a right ankle injury, and assigned a 20 percent evaluation. The Veteran has appealed the RO's assignment of the initial 20 percent evaluation. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's residuals of a right ankle injury have manifested by limitation of motion with pain. 2. The Veteran's residuals of a right ankle injury have not manifested by ankylosis, malunion of the os calcis or astralgus, astragalectomy, malunion of the tibia and fibula with marked ankle disability, or nonunion of the tibia and fibula. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for residuals of a right ankle injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran has not alleged any prejudice; thus that burden has not been met in this case. Nevertheless, the Board notes that VA has fully complied with the notice provisions of 38 U.S.C.A. § 5103(a). In letters dated in September 2005 and June 2009, the Veteran was advised of how to substantiate his claim for service connection, his and VA's respective duties in developing the claim and as to the disability rating and effective date elements of his claim. The record also shows that VA has obtained some of Veteran's service treatment records and VA records, assisted the Veteran in obtaining evidence, and obtained medical examinations and opinions as to the severity of his service-connected disability involved in the present appeal. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The Board notes that some of the Veteran's service treatment records have been formally found as unavailable. See January 2006 memorandum. As the issue in the present case is the current severity of the Veteran's right ankle disability, this is of no consequence. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The United States Court of Appeals for Veterans Claims (hereinafter "the Court ") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings, and consider the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The RO has considered the Veteran's right ankle disability under Diagnostic Code 5262, which provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Other diagnostic codes for disabilities of the ankle follow. Ankylosis (bony fixation) of either ankle, depending upon the favorability of the angle of fixation, warrants evaluation from 20 to 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Limitation of motion of the ankle which is moderate warrants a 10 percent evaluation and marked warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Ankylosis of the subastragalar or tarsal joint in good weight-bearing position warrants a 10 percent evaluation, while such ankylosis in a poor weight-bearing position warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5272. Malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent evaluation, and marked deformity warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5273. Astragalectomy warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5274 (2012). Normal range of ankle motion is from 20 degrees of upward dorsiflexion to 45 degrees of downward plantar flexion. 38 C.F.R. § 4.71, Plate II. The terms "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 (2011). All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6 (2012). Facts In August 2005, the Veteran filed his claim for service connection of a right ankle disability. At this time, he complained of pain and swelling in the ankle and that he had to use a cane to help him walk. He also complained that the ankle would want to give out on him several times per day. At the time of his claim, he self-treated the condition with over-the-counter medications for pain, as well as an Ace wrap. Of record is a December 2005 VA treatment record documenting the Veteran's compliant of right ankle pain and weakness of 55 years duration following in-service injury thereto. He complained that he had frequently sprained the ankle since service and related pain at a level of 6/10, which had led to inactivity over the past several years. Right ankle pain was assessed and X-rays showed slight narrowing of the talotibial joint. Small spurs were seen along the distal tibia, while no acute fractures, dislocations or soft tissue abnormalities were noted. The X-ray report documented an impression of mild degenerative changes of the talotibial joint. A January 2006 geriatric medicine note documents a complaint of a loose ankle, with no falls. He complained of right ankle pain at this time, reporting that sometimes the ankle gave way, but denied any history of falls. He asked to have a brace or some sort of support. A February 2006 VA prosthetics note documents that the Veteran was fitted for a lace-up ankle brace at this time. The note reflects that the Veteran wore the brace and returned shortly thereafter complaining that it was rubbing against his ankle. The plastic supports were removed from the brace and the Veteran was advised to follow-up if there were any problems. In July 2009, the Veteran was afforded a VA examination. At this time he complained of having a weak ankle, particularly noting that following service his right ankle would invert if walking on uneven ground and cause swelling. He related that this occurred about 2 times per year. He had worked as an over-the-road truck driver, retiring in 1997. At the time of the examination the Veteran had been using a motorized scooter for the past 5 months and a cane in his right hand to assist in walking. The examiner remarked that the use of the motorized scooter and cane were not the result of the right ankle condition, but rather the result of chronic obstructive pulmonary disease (COPD) and severe shortness of breath. In regard to the episodes of inversion reported by the Veteran, he reported that the last had occurred about 2 years prior. The examiner noted that the Veteran, in fact, walked very little at the present time. The Veteran related that he wore an ankle brace on the right ankle on occasion, but did not prefer to do so as it caused him to develop blisters. At present, the Veteran complained of aching in the right ankle if the right foot was dependent for about 30 to 60 minutes. The Veteran reported that his right ankle felt tired and noted that the only walking he did was at home, which produced aching in the right ankle. The Veteran had last walked any distance, perhaps 15 to 20 minutes, about 6 months prior. He reported that he felt that lateral aspect of his malleolus of the right ankle was larger than that of the left ankle. Examination showed that the Veteran was able to get out of his motorized scooter and walk down the hall to the examining room. He had severe shortness of breath and stood flexed forward with a broad-based gait, but had no limp. The ankles showed no swelling and the right lateral malleolus was slightly larger than the left. The Veteran reacted strongly and withdrew the right ankle to even light touch along the anterior and lateral aspect of his right ankle. Attempts at inversion and eversion of the right ankle caused pain and withdrawal. The range measured was inversion to 10 degrees, eversion to 20 degrees, which were the same as on the left side. There was no evidence of ligament laxity. There was a negative anterior and posterior drawer sign of the ankle and no laxity on varus stress of the ankle. Range of motion was measured repetitively. The right ankle dorsiflexed to 15 degrees. It also exhibited 40 degrees of plantar flexion. Following repetitive motion, the ankle did demonstrate increased pain, but no incoordination, and there was no evidence of lack of endurance or weakness, but only pain. The examiner noted that X-rays of the ankle had been taken in 2005 and that they had been reviewed. In this regard, the examiner commented that their review of the X-rays did not show any evidence of narrowing between the tibia and talus, with only very minute spur formation at the anterior aspect of the distal tibia on the lateral view. The examiner also noted that current X-rays demonstrated no evidence of degenerative joint disease, there was a tiny spur anterior to the distal tibia of questionable significance, but absolutely no joint space narrowing between the tibia and talus. No abnormality was seen in the lateral or distal fibular or the medial malleolus. The examiner diagnosed right ankle strain. In conclusion, the examiner remarked that the X-rays showed a very minimal spur formation after ankle ligament injury, but there was certainly no evidence of degenerative joint disease or arthritis of the right ankle. They also found no objective evidence of ligament laxity. They noted that the Veteran was using a motorized scooter due to COPD and shortness of breath, which had nothing to do with his ankle. A July 2010 VA record pertaining to a routine evaluation documents the Veteran's complaints of pain in the right ankle, particularly since service. X-rays taken at this time demonstrated no evidence of fracture-dislocation, bone production or destruction. At this time, the Veteran complained of pain at a level of 7/10 in the ankle and that it felt weak and like it may give out easily. He apparently got minimal relief with the use of a brace as the use thereof caused him blisters. He denied a history of falls. Examination showed pain over the right lateral malleolus, which was slightly larger than the left. There was no swelling, but decreased range of motion with pain response. There was no obvious laxity. Sensation and pulses were intact. The Veteran did walk with a limp. In September 2012, the Veteran was afforded another VA examination. Right ankle plantar flexion was to 20 degrees with objective evidence of pain at this end point. Right ankle dorsiflexion was to 15 degrees, also with objective evidence of pain at this end point. The Veteran was able to perform repetitive use times 3, with no additional limitation of range of motion thereafter. He had no functional loss and/or functional impairment of the ankle. There was pain on palpation to the ankle. Plantar flexion and dorsiflexion were 4/5 in terms of muscle strength. There was no laxity or ankylosis. The Veteran had never had shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus (os calcis) or talus (astralgus) or a talectomy (astragalectomy). There was no history of joint replacement or surgery to the ankle. It was again noted that the Veteran utilized a wheelchair due to severe COPD. X-rays were taken at the time of the examination. They showed minimal soft tissue swelling in the lateral malleolar region, as well as a small spur at the medial malleolus. There was no evidence of fracture, dislocation or other bone or joint pathology. The impression was of mild lateral malleolar soft tissue swelling. Analysis In opening, the Board notes that the RO has assigned a 20 percent evaluation for the Veteran's right ankle disability based upon Diagnostic Code 5262 for malunion of the tibia and fibula with moderate ankle disability. In order to substantiate a 30 percent evaluation, the evidence must demonstrate malunion with marked knee or ankle disability. In order to substantiate the maximum 40 percent evaluation, nonunion of the tibia and fibula with loose motion, requiring a brace, must be shown. A review of the evidence does not demonstrate any impairment of the tibia and fibula, particularly malunion or nonunion thereof. VA examination in July 2009 indicated that X-rays did not demonstrate any narrowing between the tibia and talus or any degenerative joint disease. No assessment of any impairment of the tibia and fibula manifested by malunion or nonunion appears anywhere in the record. Accordingly, it does not appear that this diagnostic code is applicable to any extent in the present case. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In this case, Diagnostic Code 5262 does not apply. The Board finds that Diagnostic Code 5271 is the most applicable diagnostic code. Throughout the appeal, the Veteran's right ankle disability has manifested by a chronic strain causing limitation of motion and pain, which is specifically contemplated by Diagnostic Code 5271. As outlined above, Diagnostic Code 5262 does not apply because there is no impairment of the tibia and fibula, particularly nonunion or malunion thereof. Diagnostic Codes 5270 and 5272 require ankylosis of the joint, meaning that it is fixed in a particular position. Here, the Veteran has retained motion in the ankle; therefore, there is no showing of ankylosis. These diagnostic codes do not apply. With respect to Diagnostic Codes 5273 and 5274, none of the evidence demonstrates malunion of the os calcis or astragalus or an astragalectomy. Therefore, these codes do not apply. In short, Diagnostic Code 5271 is the most appropriate. With respect to the Veteran's currently assigned 20 percent rating, the Board finds that upon review of the evidence, it is the appropriate rating under the newly applied diagnostic code. Repeated VA examination has demonstrated dorsiflexion limited to 15 degrees, where normal is 20 degrees. This limitation of motion is close to normal, such that the Board finds it to be, at most, moderate in nature. Plantar flexion, on the other hand, has ranged from 40 degrees at best, to 20 degrees at worst, with consideration of the DeLuca factors. Normal is 45 degrees. The loss in plantar flexion to slightly less than half of normal range is considered marked limitation of motion. Diagnostic code 5271 provides a maximum of 20 percent for marked limitation of motion. Therefore, the Board finds that the currently assigned rating is appropriate. The Board further points out that in order to substantiate a higher schedular evaluation, the only available means of doing so is through Diagnostic Code 5270, because Diagnostic Codes 5271 through 5274 pertaining to the ankle offer a maximum of 20 percent. That code, as explained above, does not apply, as it requires ankylosis of the joint, which has not been demonstrated by the record. In sum, throughout the appeal period, the Veteran's right ankle disability has manifested by pain and limitation of motion. His currently assigned 20 percent rating, though now under a different diagnostic code, is adequate to compensate for those symptoms. The schedule does not provide higher ratings based on the particular facts of this case. Extraschedular Consideration According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected condition is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right ankle disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The criteria particularly contemplate his specific symptoms of limitation of motion and pain. The Board further observes that, even if the available schedular evaluation for his disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent, or any, hospitalizations for his right ankle condition. Additionally, there is not shown to be evidence of marked interference with employment due to this disability. Furthermore, the 20 percent disability rating assigned contemplates some industrial impairment, and there is nothing in the record which suggests that his disability markedly impact his ability to perform a job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial evaluation in excess of 20 percent for residuals of a right ankle injury is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs