Citation Nr: 1302695 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 09-31 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a rating in excess of 10 percent for a left ankle disability. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973. This matter is on appeal from a September 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a hearing before the undersigned Veteran's Law Judge in May 2011. A transcript of the hearing is of record. This appeal was remanded by the Board in September 2011 for further development and is now ready for disposition. FINDING OF FACT The Veteran's left ankle disability is manifested by objective complaints of pain and swelling, and subjective findings included tenderness and a substantially normal range of motion. However, marked limitation of motion, ankylosis, X-ray evidence of involvement of two or more major or minor joints or a foot injury that is moderately severe in nature are not shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a left ankle disability, characterized as degenerative joint disease of the mid-foot and talonavicular joint, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5270, 5271, 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision, of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran's left ankle claim arises from his disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, additional notice is not required and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, no further notice is needed for that issue. Next, VA has a duty to assist a Veteran in the development of the claim. That duty includes assisting him in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service medical records and VA outpatient treatment records. Further, the Veteran submitted statements in support of his claim. The RO has also attempted to acquire records that may be in the possession of the Social Security Administration (SSA). However, the SSA responded in August 2010 that no records were in its possession. Nevertheless, VA's duty to assist has been met. Next, VA examinations with respect to the issue on appeal were obtained in May 2007, July 2008 and February 2011. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination or, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA examinations obtained are more than adequate, as they are predicated on a full review of the Veteran's medical history and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The Board finds that no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). The Board must consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, the reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in adjudicating claims under diagnostic codes governing limitation of motion. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. § 4.14 (2012). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2012). In cases where the Veteran's claim arises from a disagreement with the initial rating following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods during the claim, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999). A September 2008 rating decision granted service connected for degenerative joint disease in the left ankle and assigned a 10 percent rating by analogy to limitation of motion of the ankle under 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012).. In order to warrant a rating in excess of 10 percent for degenerative arthritis of the ankle, the evidence must show ankylosis of the ankle with plantar flexion less than 30 degrees, which would warrant a 20 percent rating under Diagnostic Code 5270); marked limitation of motion which would warrant a 20 percent rating under Diagnostic Code 5271; or arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, which would warrant a 20 percent rating under Diagnostic Code 5003. 38 C.F.R. § 4.71a (2012). The normal ranges of motion in the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2012). Nonspecific words such as marked are not defined in the diagnostic codes or the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is equitable and just. 38 C.F.R. § 4.6 (2012). The Board finds that a rating in excess of 10 percent is not warranted based on the evidence of record. Specifically, while the Veteran has undergone three VA examinations to evaluate the nature and severity of his disability during the course of the appeal, ankylosis, marked limitation of motion, and arthritis of two or more major joints or two or more minor joint groups, has not been shown. At a VA examination in May 2007, the Veteran stated that he had pain in his right ankle that increased when he stood, resulting in swelling and tenderness. On occasion, the ankle became too tender for him to wear shoes. He denied any history of dislocation or recurrent subluxation. Upon examination, some tenderness and swelling was observed in the subtalar joint. His range of motion in the left ankle was limited to only 20 degrees of dorsiflexion, which was nonpainful in motion, and 33 degrees of plantar flexion, with pain only at the end point of motion. There was no change in range of motion based on repetitive motion. At a July 2008 VA examination, the Veteran stated that he continued to experience chronic pain in the left foot. He also reported episodes of swelling. He had found that arch inserts alleviated pain, although they wore out often. He soaked his foot every night and applies an ACE bandage, which alleviated pain. He also stated that he worked full time, and did a lot of walking, which caused foot pain. Upon examination, he was observed to be wearing high-top shoes and he walked with a limp. Significant tenderness was observed was observed upon palpation of the medial aspect of the subtalar joint region and over the medial melleolar region of the left ankle. His range of motion was to 10 degrees of dorsiflexion and 30 degrees of plantar flexion. Although there was some pain observed throughout the range of motion, it did not result in any additional loss in range of motion. On VA examination in February 2011, the Veteran described his left ankle symptoms as an "aching, sharp pain" in the left medial malleolus and subtalar region that varied in intensity. Pain was aggravated by standing and walking for prolonged periods, and relieved by rest and putting his foot into a bucket of water. Flare-ups occurred about once per day, and prevented him from standing more that 15 to 20 minutes. There had been no history of incapacitating episodes of foot pain. Upon examination, swelling of a moderate nature was observed in the medial aspect around the medial malleolus and subtalar area, and mild tenderness was observed upon palpation. Range of motion indicated 15 degrees of dorsiflexion and 25 degrees of plantar flexion. While grimacing was observed at the end range of motion, there was no indication of additional limitation of motion due to pain. There was also no additional limitation after repetitive motion. In addition to the VA examinations, the record also includes a number of outpatient treatment notes addressing the Veteran's left foot symptoms. For example, in March 2006, the ankle joint was observed to be well maintained upon X-ray. Although tenderness was observed in the medial malleolus region at an April 2006 evaluation, full movement was observed in the ankle. A physical rehabilitation treatment note from December 2009 indicates that the Veteran continued to experience pain when he was on his feet. Upon examination, dorsiflexion in his left foot was observed to be approximately 5 degrees. While that was more limiting than what was observed at the VA examinations, that observation is of limited probative value compared to the VA examinations, as that was merely an estimate, and was not measure with the use of goniometer. 38 C.F.R. § 4.46 (2012). Moreover, it is contradicted by the observations of the later VA examination in February 2011. Based on the information from the VA examinations and other evidence of record, the Board does not characterize the limitation of motion in the Veteran's left ankle as marked. The examinations indicate as much as a 50 percent loss in range of motion when compared to the normal ranges of motion listed in 38 C.F.R. § 4.71, Plate II (2012). However, the Board characterizes this amount of limitation as more nearly approximating "moderate" rather than "marked." Moreover, although there is a limited range of motion in the left ankle, an observable range of motion has been observed on all occasions. Therefore, ankylosis is not shown. The Board finds that an increased rating based on limitation of motion or ankylosis is not warranted. The evidence also does not indicate X-ray evidence of arthritis involving two or more major joins or minor joint groups with incapacitating exacerbations. It is unclear whether there is X-ray evidence of arthritis, as an X-ray in March 2006 was limited to small tissue edema and a calcaneal spur. Even if arthritis were observed, there is no indication of incapacitating exacerbations in the ankle. In fact, at his VA examination in February 2011, the Veteran specifically denied a history of incapacitating episodes in his foot. Therefore, an increased rating is not warranted on that basis. The Board notes that Diagnostic Code 5284 may also potentially be applicable. Under Diagnostic Code 5284, a 20 percent rating is warranted for a foot injury that is moderately severe in nature. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). However, the Board finds that an increased rating is not warranted on the basis of that diagnostic code. Specifically, the Veteran has complained of pain and swelling in the left foot. However, the evidence does not indicate that it has impaired him to a moderately severe level. To the contrary, he is still able to walk for periods of time, and his symptoms appear to be well controlled. Thus, while it is clear that he experiences some impairment in his left foot, it does not appear that they are of a "moderately severe" level. Therefore, the Board finds that an increased rating under Diagnostic Code 5284 is also not warranted. When rating the extent of the Veteran's disability, the Board also considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran complained of pain throughout the entire range of motion at his VA examination in July 2008. However, the mere presence of pain in motion does not, by itself, constitute functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, while the Veteran has complained of additional pain when standing on his feet for prolonged periods of time, the evidence does not indicate that such flare-ups have caused additional limitation of motion. While the Veteran has complained of pain, those complaints are adequately contemplated in the ratings he currently receives. The examiners have not found any additional loss of function on repetitive motion. The Board has also considered the Veteran's statements that his left ankle symptoms are worse than the 10 percent rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24 (1991). At his hearing before the Board in May 2011, the Veteran stated that his foot was in pain the majority of the time. He also stated that caused him to limp all of the time and that he soaked his foot often to alleviate pain. He also stated that his foot swelled and he generally uses larger shoes for his foot to fit in his shoes. The Veteran is competent to report symptoms that come to him through his senses and require only personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). He is not competent to identify a specific level of disability of ankle disability according to a diagnostic code. Competent evidence concerning the nature and extent of the Veteran's left foot disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the examinations. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds the medical evidence more persuasive than the Veteran's assertions because of the medical training and expertise of the examiners. The Board has also considered whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular rating when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). To determine whether referral for such consideration is warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture is not adequately contemplated by the applicable schedular rating criteria. Specifically, relevant diagnostic codes address loss in range of motion which, by extension, allows for an adequate assessment of overall limitation. The applicable diagnostic codes allow for higher ratings, but the Board has explained why a higher rating was not warranted. The Board finds that the applicable schedular rating criteria are adequate in this case. In addition the Board finds that marked interference with employment and frequent hospitalization are not shown. Therefore, referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence that he is unemployable due to his service-connected disabilities. In fact, he stated as recently as at his hearing that he is currently employed. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In sum, after a careful review of the evidence of record, the Board finds that an initial rating in excess of 10 percent for a left ankle disorder is not warranted. The preponderance of the evidence is against the claim for increase, and the appeal is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of 10 percent for a left ankle disability is denied ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs