Citation Nr: 1304076 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 03-16 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of a left ankle fracture with traumatic arthritis for the period prior to February 13, 2006. 2. Entitlement to a rating in excess of 20 percent for residuals of a left ankle fracture with traumatic arthritis for the period beginning February 13, 2006 (excluding the period for which a temporary total rating was assigned for this disability, from January 9, 2008 to March 31, 2008). (The issue of entitlement to service connection for a cervical spine disability is addressed in a separate decision.) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to April 1995. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran presented testimony on these issues before two different Veterans Law Judges (VLJs), the first hearing was in June 2005 and the second was in March 2008. A transcript of each hearing has been associated with the Veteran's claims file. All VLJs who conduct hearings must participate in making the final determination of the claims on which testimony was received. 38 U.S.C.A § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C.A. § 7102(a). Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held. In Arneson v. Shinseki, 24 Vet. App. 379 (2012), the United States Court of Appeals for Veterans Claims (Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. In this appeal, the Veteran was sent an August 2012 letter that advised him of his right to a third hearing pursuant to Arneson. The letter also advised the Veteran that he had 30 days to respond to the letter or the Board would assume he did not want a third hearing and would proceed accordingly. The letter was sent to the Veteran's last known address and was not returned as undeliverable. The Veteran did not respond to the letter within 30 days. Therefore, the Board may proceed with the adjudication of the claims without providing a third hearing in this case. The Board remanded these issues for further evidentiary development in September 2005, July 2007, and June 2009. The requested development was completed, and the case has now been returned to the Board for further appellate action. In June 2009, claims for entitlement to service connection for a cervical spine disability and posttraumatic stress disorder (PTSD) were also remanded. The claim for entitlement to service connection for a cervical spine disability is addressed in a separate Board decision. The claim for service connection for PTSD was granted in September 2011 and is therefore no longer before the Board. FINDINGS OF FACT 1. Prior to February 13, 2006, the residuals of a left ankle fracture with traumatic arthritis primarily included pain and no more than moderate limitation of motion. 2. Since February 13, 2006, the residuals of a left ankle fracture with traumatic arthritis have included pain and limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a left ankle fracture with traumatic arthritis, prior to February 13, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271 (2012). 2. The criteria for a rating in excess of 20 percent for residuals of a left ankle fracture with traumatic arthritis, since February 13, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, October 2005, February 2006, and June 2009 letters provided the Veteran with notice regarding what information and evidence is needed to substantiate his claims for higher ratings, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. March 2006 and June 2009 letters advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claims were last readjudicated in September 2011. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records and service personnel records, VA treatment records and examination reports, private treatment records, Social Security Administration (SSA) records, and hearing testimony. In addition, the Board notes that these claims were remanded on three previous occasions. First, in September 2005 the claims were remanded to provide the Veteran with VCAA notice and a VA examination. VCAA notification was provided in October 2005 and the Veteran was afforded a VA joints examination in February 2006. Second, in July 2007 the claims were remanded to afford the Veteran a hearing. A hearing was subsequently held in March 2008. Third, in June 2009 the claims were remanded to provide the Veteran with notification as required by a precedential decision at the time (Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008)) and a VA examination, and to obtain VA outpatient treatment records and Social Security Administration (SSA) records. Notification as required by Vazquez-Flores was provided in June 2009, the requested VA and SSA records were obtained, and the Veteran was provided a VA joints examination in June 2011. Accordingly, the requirements of the remands were ultimately accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran underwent VA examinations in January 2003, February 2006, May 2009, and June 2011. These examinations are found to be adequate in so far as they thoroughly and accurately portray the extent of the left ankle disability. They were each conducted with a history obtained from the Veteran, and the left ankle was tested for range of motion and functional capacity. Therefore, the Board finds that the Veteran has been provided adequate medical examinations in conjunction with his claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). As the RO has already granted "staged" ratings for the disability under consideration, the Board will consider the propriety of the rating at each stage as well as whether any further staged rating of the disability is warranted. With any form of arthritis, painful motion is an important factor. 38 C.F.R. § 4.59 (2012). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id., see also Burton v. Shinseki, 25 Vet. App. 1 (2012) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2012). 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 innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. Id. When considering joints, manifestations of functional loss also include less or more movement than is normal, weakened movement, excess fatigability, incoordination, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight bearing. 38 C.F.R. § 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 207 (1995) (holding that 38 C.F.R. § 4.45 applies to joint conditions as well as muscle and nerve conditions). Assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2012). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under Diagnostic Code 5271, moderate ankle limitation of motion warrants a 10 percent rating and marked ankle limitation of motion warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2012). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Here, the Veteran contends that his left ankle disability is more severe than currently evaluated. Historically, service connection was awarded for residuals of a left ankle fracture by a March 1999 rating decision. A 0 percent disability rating was assigned, effective December 18, 1998. The current appeal stems from a November 2002 claim for an increased rating. The residuals of a left ankle fracture are currently rated as 10 percent disabling prior to February 13, 2006 and 20 percent disabling thereafter (excluding the period when a temporary total rating was assigned for this disability from January 9, 2008 to March 31, 2008 after a left foot tarsal tunnel release was performed). The Board notes that the medical evidence reflects that the Veteran has tarsal tunnel syndrome of the left foot (which is also developing in the right foot). The Veteran is not service connected for tarsal tunnel syndrome and that disability will not be further discussed in this decision. Through testimony and statements, the Veteran has asserted that his left ankle is painful, swells when he walks, and is limited in motion. There is also a letter of record from an individual who claims to have served with the Veteran in the military, although the individual did not offer any observations regarding the current effects of the Veteran's left ankle disability. The Veteran was afforded four VA joints examinations in connection with these claims. During the first VA examination, performed in January 2003, the Veteran reported that it felt like his left ankle was "coming apart". Examination of the left ankle revealed tenderness. The ankle was stable. Dorsiflexion was to 0 degrees, plantar flexion was to 42 degrees, inversion was to 30 degrees, and eversion was to 5 degrees. The diagnosis was diminished range of motion of the left ankle. During the second VA examination, performed in February 2006, the Veteran denied constant pain, stiffness, swelling, heat, redness, instability or locking. He did report flare ups with walking more than a few yards with severe pain happening everyday and lasting several hours. Examination of the left ankle revealed tenderness. Dorsiflexion was to 14 degrees with pain beginning at 8 degrees, and plantar flexion was to 20 degrees with pain beginning at 10 degrees. Range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use. Instability testing with varus and valgus stressing was negative. There was no crepitus. The examiner diagnosed degenerative joint disease of the left ankle, left ankle sprain with surgical intervention, and bone chip to left ankle with surgery. During the third VA examination, performed in May 2009, the Veteran complained of constant severe left ankle pain. He denied locking, swelling, or instability. Examination of the left ankle revealed dorsiflexion to 10 degrees and plantar flexion to 30 degrees, both with pain. The range of motion was not additionally limited following repetitive use. The ankle was stable. The examiner diagnosed moderate degenerative joint disease of the left ankle. During the fourth VA examination, performed in June 2011, the Veteran complained of occasional instability and swelling of the left ankle. He also noted pain and stiffness. Examination revealed dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was mild end of range pain with dorsiflexion. The range of motion was not additionally limited following repetitive use. The diagnoses were (1) left ankle fracture without residuals and (2) nonservice-connected separate issue of tarsal tunnel release surgery in 2009. The Veteran also had his ankle examined in connection with a claim for disability benefits from SSA. During that August 2008 examination, the Veteran complained of chronic pain and stiffness in the left ankle, and that the ankle gives out and has a decreased range of motion. Examination of the left ankle was unremarkable. Dorsiflexion and plantar flexion were to 15 degrees and were performed slowly with complaints of pain. There was no instability of the extremity joints. VA treatment records show a painful left foot and ankle. In May 2008, the Veteran complained that his ankle felt weak and he was given an ankle brace to help with instability of the subtalar joint. Private treatment records do not address the left ankle disability. To receive a rating in excess of 10 percent prior to February 13, 2006, based on limitation of motion, the evidence would need to reflect that the Veteran had marked limitation of left ankle motion as opposed to moderate limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Range of motion of the left ankle during this time was measured during the January 2003 examination where the Veteran reportedly had 0 degrees of dorsiflexion and 42 degrees of plantar flexion. While dorsiflexion was absent, the ankle had all but 3 degrees of plantar flexion. Such range of motion is better described as moderate than marked. As the evidence more closely resembles moderate limitation of motion than marked limitation of motion, a rating in excess of 10 percent is not warranted prior to February 13, 2006 based on limitation of motion. See id.; see also 38 C.F.R. § 4.7. Even considering the Veteran's subjective complaints of pain, the medical evidence of record does not show any additional limitation of motion or functional impairment that would support an evaluation in excess of 10 percent prior to February 13, 2006. See DeLuca, 8 Vet. App. 202; 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. As of February 13, 2006, the Veteran is receiving the maximum schedular rating based on limitation of motion of the ankle-20 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Since the Veteran already receives the maximum disability rating available for limited motion of the left ankle since February 13, 2006, it is not necessary to consider the functional loss due to pain and weakness on motion as of that date. See Johnston v. Brown, 10 Vet. App. 80 (1997) (implicitly holding that once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain). The Veteran could receive a rating higher than 20 percent for the left ankle with ankylosis of the ankle in a certain degree of plantar flexion or dorsiflexion or with certain deformities. See id., Diagnostic Code 5270. A deformity is not shown in the medical records or alleged by the Veteran. In fact, during an August 2008 SSA examination it was specifically noted that the left ankle did not have any deformity. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). The medical records clearly demonstrate that while motion of the Veteran's left ankle may be limited at times, some range of motion is present. Thus, it cannot be concluded that the Veteran has ankylosis of the left ankle. The Board acknowledges that the Veteran was given an ankle brace to help with instability in May 2008 after he complained that his ankle felt week, that he told an SSA examiner in August 2008 that his ankle gives out, and that he told a VA examiner in June 2011 that his left ankle had occasional instability. After examination by the SSA examiner, it was noted that the extremity joints were without instability. The ankle was also stable on examination in January 2003, February 2006, and May 2009. The Veteran denied ankle instability in February 2006 and May 2009. While an ankle brace was prescribed to help with instability in May 2008, instability of the left ankle was not actually noted in the report; only the Veteran's complaint of ankle weakness. On all occasions where the left ankle has been tested for instability, the ankle was reportedly stable. The Board is affording more probative weight to the findings after ankle stability testing by medical professionals than the Veteran's reports of occasional ankle instability. As such, a separate or higher rating is not warranted based on left ankle instability. The Board has also considered whether higher ratings could be assigned based on another diagnostic code but finds no code which would allow for any higher rating. In this regard, the evidence does not support a finding that the Veteran has malunion of the os calcis or astragalus or has had astragalectomy. For example, X-rays of the ankle have not revealed any malunion or removal of the talus bone (astragalectomy). As such, higher ratings are not warranted based on malunion or astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5273, 5274 (2012). The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his left ankle disability. Accordingly, the Board finds that the preponderance of the evidence is against assignment of any higher disability rating at any point pertinent to this appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The above determinations are based upon consideration of applicable provisions of VA's rating schedule. The Board has also considered whether the Veteran's left ankle disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a rating in excess of 10 percent for residuals of a left ankle fracture with traumatic arthritis, for the period prior to February 13, 2006, is denied. Entitlement to a rating in excess of 20 percent for residuals of a left ankle fracture with traumatic arthritis, for the period beginning February 13, 2006 (excluding the period for which a temporary total rating was assigned for this disability, from January 9, 2008 to March 31, 2008) is denied. ____________________________ __________________________ TANYA A. SMITH JACQUELINE E. MONROE Acting Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ____________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs