Citation Nr: 1304472 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-04 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a rating in excess of 10 percent for left ankle fracture, post operative, with surgical scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Subsequently, this appeal was transferred to the RO in Wichita, Kansas. In April 2011, the Veteran testified before the undersigned at a Board hearing held at the RO. A transcript of the hearing is associated with the claims file. In October 2011, the Board remanded this matter for additional development. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." While the February 2012 Supplemental Statement of the Case (SSOC) did not review some of the most recent treatment records found in his eFolder dated to December 2011, and the Veteran has not submitted a waiver of initial RO consideration for the most recent treatment records found in his eFolder, the Board finds that such records are not pertinent to his higher rating claim currently on appeal. Therefore, the Veteran is not prejudiced by the Board's initial consideration of this evidence. 38 C.F.R. § 20.1304(c) (2012). In his April 2012 brief, the Veteran's representative highlighted that the January 2012 VA examiner noted that the Veteran has knee pain due to favoring his left ankle and that a claim for compensation should be inferred. The issue of entitlement to service connection for a knee disorder, to include as secondary to service-connected left ankle fracture, post operative, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's left ankle disability is shown to have been manifested by no more than a moderate limitation of motion and subjective complaints of pain; and his scar of the left ankle was not unstable or painful and did not exceed 144 square inches (929 square centimeters). CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left ankle fracture, post operative, with surgical scar, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5270, 5271, 7802, 7804 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran asserts that he is entitled to a rating in excess of 10 percent for his service-connected left ankle disability. During his April 2011 Board hearing, the Veteran testified that his left ankle had worsened in the last five or six years and since his last VA examination in April 2009. He reported symptoms including pain, cramping, turning, giving way when working out, and difficulty standing and climbing. He also said that he thought it was starting to affect his knee, it was harder to function on a daily basis, and he had to take pain pills now. He worked at a Kwik Shop with no breaks and had to stand for the 8 or 9 hours he worked. Additionally, the Veteran reported that he began seeking VA treatment approximately two months earlier and was getting an ankle and knee brace later that month. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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 (West 2002); 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. 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). The analysis in the following decision, therefore, is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It is the responsibility of the rating specialist to interpret 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 present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). A layperson is only competent to report observable symptoms, but not clinical findings which are applied to VA's Schedule for Rating Disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. Historically, service connection for the residuals of a left ankle fracture, post operative, was granted by the RO in an April 1981 rating decision. Initially, a noncompensable rating was awarded under the provisions of Diagnostic Code 5271 for rating limited motion of the ankle. The rating was increased to 10 percent in a December 1982 rating decision under the provisions of Diagnostic Code 5010 for rating traumatic arthritis. In February 2009, the Veteran filed his claim for a higher rating for his service-connected left ankle disorder. In April 2009, the RO denied the claim. In his May 2009 Notice of Disagreement with the rating decision now on appeal he asserted that his left ankle had gotten a lot worse over the last 30 years. Under the provisions of Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion. A 20 percent rating is assigned for marked limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Words such as "mild," "moderate," "moderately severe," and "severe" 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. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Other potentially applicable diagnostic codes include Diagnostic Code (DC) 5270, which provides ratings for ankylosis of the ankle. Under DC 5270, ankylosis of the ankle in planter flexion less than 30 degrees is to be rated 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Cullen v. Shinseki, 24 Vet. App. 74, 77 at FN 3 (2010) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (31st. ed. 2007). Normal range of motion for 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). Arthritis due to trauma under Diagnostic Code 5010 is rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is non-compensable, 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. In the absence of limitation of motion, a 20 percent evaluation is merited for X- ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran underwent a QTC (fee-basis) examination in April 2009. He complained of constant localized pain in the left ankle as a result of a fall in service when he fractured his left ankle 30 years ago. He said that the pain was aching, sharp and cramping and was a 7 on a pain scale from 1 to 10. Pain was elicited by physical activity and the cold and relieved spontaneously and by use of Darvocet. He said that the ankle turned a lot, cramped, and was affected by the cold. He reported that during times of pain he could function with medication. He reported symptoms of weakness, stiffness, swelling, redness, giving way, lack of endurance, locking and fatigability. He did not have heat and dislocation. He also reported that he was not receiving any treatment for this disorder, but that he had difficulty standing for extended periods of time, walking, and climbing. On physical examination, the Veteran stood 69 inches, weighed 194 pounds, and had a normal gait. The feet showed no signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear. He did not require any assistive device for ambulation. Tenderness and guarding of movement was noted for the left ankle, but there were no signs of edema, effusion, weakness, redness or heat, subluxation, or any deformity of the left ankle. Range of motion measurements for the left ankle were as follows: dorsiflexion to 10 degrees, and plantar flexion to 25 degrees, with pain occurring at 20 degrees. The joint function of the left ankle was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. X-ray findings were within normal limits and there was no indication of a malunion to the os calcis or malunion of the astralgus or any sign of osteoarthritis. The examiner opined that the Veteran's manual labor occupation was limited by ankle pain from standing and his daily activities were limited in that he could not participate in sports. A level surgery scar measuring about 5 cm. by 0.2 cm. was present at the medial left ankle. The examiner noted no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture or limitation of motion. In his January 2010 Substantive Appeal, the Veteran asserted that his ankle gave him problems all the time. When he tried to sleep it cramped. When he went out walking and in the winter it hurt constantly. He also complained that he could not do any sports without the ankle going out and becoming black and blue and swelling. VA progress notes, dated in April 2011, note that the Veteran wore an ace bandage around his ankle and high top shoes. He requested a left ankle brace for support because he usually twisted it when walking. He was also advised that he could wear shoes that covered up to his ankle. An assessment of chronic ankle pain from arthritis was noted. He was noted to be using Lortab, 7.5 milligrams (mg), tid (twice daily). A June 2011 VA progress note indicates that the Veteran wore a knee and ankle brace on the left side due to chronic pain as he stood for 8 to 10 hours a day while working. He said that he took Lortab several times a day just to be able to walk. He was advised to take a small break during the day so that he could rest his knee/ankle in between, but the Veteran said that he could not do that. The Veteran underwent a VA ankle examination in January 2012. The Veteran complained that his left ankle turned and swelled and gave out. He also said that he took pain medication for his ankle. He said that the ankle cramped up at night and that he had dull pain in the left ankle. He also told the examiner that he worked 8 to 9 hours a day several days a week at a Kwik Shop standing all the time. He did not report any flare-ups. On examination, range of motion measurements indicated that left ankle plantar flexion was to 40 degrees with objective evidence of painful motion beginning at 35 degrees. Left ankle plantar dorsiflexion was to 15 degrees with objective evidence of painful motion beginning at 15 degrees. Repetitive use testing showed no additional limitation of motion. Functional loss was noted as less movement than normal and pain on movement. The left ankle was noted as tender on palpation, but there was no laxity noted nor ankylosis. Muscle strength was normal. There was also no evidence of shin splints, stress fractures, an Achilles tendon rupture, malunion of os calcis or astragalus, or a talectomy or astragalectomy. The examiner noted that the Veteran wore an ankle brace at work all the time for stability, but that his left ankle disorder did not impact his ability to work. Imaging studies showed no abnormal findings, such as degenerative arthritis. A surgical scar was noted, but it was not painful or unstable and did not represent a total area greater than 39 sq. cm. or 6 sq. in. The Board finds that the claim must be denied. The April 2009 QTC examination report shows that the Veteran's left ankle had dorsiflexion to 10 degrees, and plantar flexion to 25 degrees, with pain occurring at 20 degrees. The January 2012 VA examination report shows that the Veteran's symptoms improved, in that the Veteran demonstrated an increased range of motion, i.e., dorsiflexion was to 15 degrees and plantar flexion was to 40 degrees, with pain occurring at 35 degrees. The Board finds that this evidence is insufficient to show that he had a marked limited motion of the left ankle that would entitle the Veteran to a higher, or 20 percent rating, under Diagnostic Code 5271. In summary, the medical evidence does not show that the Veteran's left ankle has been productive of a marked limitation of motion. Since the Veteran's left ankle disorder was not characterized by marked loss of range of motion of the ankle, an increased 20 percent rating is not warranted VA must consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995), discussing 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant. See 38 C.F.R. § 4.40. "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues, such as the tendons or ligaments, or crepitation within the joint structures, should be noted carefully as points of contact which are diseased. 38 C.F.R. § 4.59. In this case, the Veteran case has consistently complained of constant left ankle pain that bothers him while standing at work during the day and subsequent cramping during his sleeping hours. The Board has considered the Veteran's statements with regard to his left ankle disability, and the medical evidence, which shows subjective complaints of ankle pain. However, the evidence is insufficient to show that the Veteran's left ankle pain has resulted in additional functional limitation comparable to the next-higher or 20 percent rating under Diagnostic Code 5271. Thus, the Board finds that limitation of motion is not shown that more nearly approximated or rose to the level of marked as envisioned by the rating schedule. Indeed, pain alone does not constitute a functional loss under VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran did not demonstrate additional limitation of motion from pain, swelling, fatigue, and weakness. Specifically, both the April 2009 and January 2012 examiners considered the effect of repetitive motion and consistently noted in the clinical findings that repeated motion did not result in further limitation of motion. As the VA examinations considered the result of painful motion, and show that there was no additional limitation of motion due to pain, an increased evaluation based on functional loss is not warranted. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered whether a higher rating may be warranted under another diagnostic code. A higher rating under Diagnostic Code 5010 for degenerative arthritis of the left ankle is not warranted for this appeal as degenerative arthritis is not established by the most recent X-ray findings and, in any event, would be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved (in this case Diagnostic Code 5271). See Mitchell v. Shinseki, 25 Vet. App. 32, 39 (2011); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. As the evidence does not reflect ankylosis of the left ankle, a higher rating is not warranted under Diagnostic Code 5270, pertaining to ankylosis of the ankle. Moreover, there is no evidence of malunion of the os calcis or the astragalus, or of a talectomy or astragalectomy, to show his entitlement to a higher rating under Diagnostic Code 5272 (for rating ankylosis of the substragalar or tarsal joint), or under Diagnostic Code 5273 (for rating malunion of os calcis or astragalus), or under Diagnostic Code 5274 (for rating an astragalectomy). Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate for the Veteran's service-connected left ankle disorder. However, the Board has not found any significant variation in the Veteran's symptomatology or clinical findings that would warrant the assignment of any staged rating in this case. The Board notes that under the most recent skin regulations, one or two scars that are unstable or painful warrant a 10 percent disability rating under Diagnostic Code 7804. 38 C.F.R. § 4.118, Diagnostic Code 7804. In addition, scars that are not of the head, face or neck that are superficial and nonlinear merit a 10 percent rating if they encompass an area of 144 sq. in. or 929 sq. cm. or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. VA examiners have described the Veteran's scar on the left ankle as measuring about 5 cm. by 0.2 cm. Therefore, it is not shown to have been manifested by an area sufficiently large to warrant a separate, compensable rating under Diagnostic Code 7802, nor are the findings sufficient to show that it is manifested by unstable or painful symptoms to warrant a separate, compensable rating under Diagnostic Code 7804. See Esteban v. Brown, 6 Vet. App. 259 (1994). The Board also has considered whether referral for extraschedular consideration is warranted. 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. 38 C.F.R. § 3.321(b)(1) (2012); 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 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's limitation of motion of the left ankle disability directly corresponds to the schedular criteria for the evaluation that has been assigned, which also incorporates various orthopedic factors that limit motion or function of the joints. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. As noted, the 10 percent rating was based upon the most limited motion, which occurred after repeated use of the joint as documented by the VA examiners. For these reasons, the Board finds that the assigned schedular rating is adequate to rate the Veteran's orthopedic disability. In addition, there is no evidence of hospitalization or marked interference with employment. Therefore, no referral for an extraschedular rating is required. For the reasons outlined above, the preponderance of the evidence supports only a 10 percent rating for the Veteran's left ankle disorder. Therefore, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA medical records. The Veteran has been afforded two examinations. In October 2011, the Board remanded this claim. The Board directed that an attempt be made to obtain all records from the Wichita RO from 2011 to the present, and VA progress notes from the Wichita VA Medical Center, dated in 2011, have been obtained and associated with the claims file. The Board further directed that the Veteran be afforded another examination of his left ankle, and in January 2012, this was done. The examiner indicated that the Veteran's claims file had been reviewed. The Veteran's subjective history and his complaints were recorded. His left ankle was examined, and the report included detailed findings. Under the circumstances, the Board finds that there has been substantial compliance with the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the Veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER A rating in excess of 10 percent for a left ankle fracture, post operative, with surgical scar, is denied. ____________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs