Citation Nr: 1304891 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-42 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an increased rating for a contusion of the paravertebral muscles in the cervical area, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for right ankle degenerative arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which increased the rating of the Veteran's cervical spine muscle contusion to 20 percent, and which continued the rating of the Veteran's right ankle arthritis as 10 percent disabling. The Veteran continues to disagree with the level of disability assigned both these disabilities. The Veteran received a hearing before the undersigned Veterans Law Judge at the RO in August 2012. A transcript of this hearing has been associated with the claims folder. FINDINGS OF FACT 1. The Veteran's service-connected cervical spine condition is currently manifested by forward flexion greater than 15 degrees; there is no objective evidence of neurological defects, incoordination, weakness, lack of endurance, ankylosis, or incapacitating episodes. 2. The Veteran's right ankle disability is manifested by pain, slight instability, and a moderate amount of limitation of motion; marked limitation of right ankle motion is not shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of the currently-assigned 20 percent evaluation for a cervical spine contusion have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242, 5243 (2012). 2. The criteria for a disability rating in excess of 10 percent for right ankle arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in December 2009, January 2010, and May 2011 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced representative and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided VA examinations during the course of this appeal, in December 2009 and May 2011. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When 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. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). In general, when 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). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40 (2012). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2012); Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Increased Rating for Cervical Spine Condition The Veteran essentially contends that his cervical spine condition is more disabling than the current 20 percent evaluation. Spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Board has evaluated the Veteran's spine disorder under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of the Veteran's ability to engage in ordinary activities, including employment, as well as an assessment of the effect of pain on those activities. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). The General Rating Formula for Diseases and Injuries of the Spine, specifically the cervical spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease rates disabilities as follows: 100 percent: Unfavorable ankylosis of the entire spine; 40 percent: Unfavorable ankylosis of the entire cervical spine; 30 percent: Forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine; 20 percent: The combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and 10 percent: Forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). The following ratings apply to intervertebral disc syndrome based on incapacitating episodes: 60 percent: Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; 40 percent: Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; 20 percent: Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and 10 percent: Incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a , Diagnostic Code 5243 (2012). An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2012). For VA compensation purposes, a normal range of motion for the cervical spine is: forward flexion of zero to 45 degrees, extension of zero to 45 degrees, left and right lateral flexion of zero to 45 degrees, and left and right lateral rotation of zero to 80 degrees. The normal combined range of motion of the cervical spine (the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) is 340 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2012); see also 38 C.F.R. § 4.71a, Plate V (2012). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). In the instant appeal, the Veteran initially underwent a VA examination of his cervical spine in December 2009. That report of VA examination of the Veteran's cervical spine contusion noted the Veteran reported pain in his cervical spine, shoulder, and arms, as well as numbness in the left arm. He reported a daily constant moderate pain, as well as stiffness and weakness in the neck and shoulders. Cold weather caused an increase in his pain. Examination showed no evidence of ankylosis of the cervical spine. Range of motion testing showed forward flexion of 20 degrees, extension of 20 degrees, left lateral flexion of 15 degrees, right lateral flexion of 15 degrees, left lateral rotation of 40 degrees, and right lateral rotation of 40 degrees. Examination showed pain, weakness, spasm, tenderness, fatigue, and lack of endurance. Additional testing however did not show any decrease in range of motion. The examiner indicated that he felt there were signs of intervertebral disc syndrome including both motor and sensory impairment. The Veteran reported neuralgia and numbness of both arms, but the examiner was unable to specify the major nerve most likely involved because the numbness was nonspecific. No instability of the spine was found. The examiner stated that the Veteran's condition caused a moderate effect on his usual daily activities. A May 2011 report of VA examination found no episodes of incapacitating episodes. The Veteran did report pain radiating throughout both upper arms, and aching and soreness of the neck and arms. The Veteran's posture and gait were normal with no abnormal spinal curvatures. There was no evidence of spasm, atrophy, guarding, tenderness, or weakness. Range of motion testing showed flexion to 25 degrees, extension to 35 degrees, left lateral flexion to 30 degrees, left lateral rotation to 50 degrees, right lateral flexion to 30 degrees, and right lateral rotation to 50 degrees. There was no objective evidence of pain on active range of motion. While there was objective evidence of pain following repetitive motion, there was no additional limitation of motion after three repetitions of range of motion. Reflex examination was normal, and sensory examination was normal in all extremities. The Veteran was diagnosed with a cervical strain. In an August 2011 addendum to the May 2011 VA examination report, the examiner noted that the Veteran's claimed conditions in his lumbar spine, knees, elbows, and ankles were not related to his cervical spine disability but were more likely related to his years of working heavy manual labor. As to a higher rating due to incapacitating episodes, as noted above, to warrant an evaluation in excess of 20 percent, the Veteran would have to be found to have incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. While the Veteran's initial VA examination in December 2009 found some signs of intervertebral disc syndrome, his more recent examination did not find such signs. Moreover, the medical evidence of record however, does not show any evidence such frequency of incapacitating episodes. While the Veteran has testified that he has trouble working at times due to this disability, he reported losing no time from work during his May 2011 examination. Further, the medical evidence of record does not show any period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. As such, while the Veteran may at times feel incapacitated by this disability, there is no medical evidence of incapacitating episodes prescribed bed rest by a physician, such that a higher rating, or in fact any rating, would be warranted under this code. As to a higher rating for limitation of motion, as noted above, the Veteran would have to be found to have forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. The Veteran's cervical spine has never been measured, during the course of this appeal to have a forward flexion of less than 20 degrees, and there is no evidence of any ankylosis. Thus, the Veteran does not meet the criteria for a higher rating under these criteria. Additionally, the Board must consider functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. See 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45 (2012). None of the Veteran's VA examination reports during this appeal have shown additional loss of range of motion during flare-ups or secondary to repetitive use of the joint, painful motion, weakness, excessive fatigability, lack of endurance, or incoordination. While the Board accepts the Veteran's contention that his cervical spine disability causes him to experience pain, stiffness, and weakness, the Board has taken this into account in its above discussion of the range of motion of the Veteran's back. The rating schedule does not require a separate rating for pain itself. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Furthermore, even when the Veteran's complaints of pain, stiffness, and weakness are considered, the manifestations of his service connected cervical spine disability do not more closely approximate the criteria applicable for a higher rating. Accordingly, a higher evaluation based on functional loss due to pain and weakness is not warranted. Turning next to neurological manifestations, neurological abnormalities associated with diseases and injuries of the spine are to be rated separately. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2012). In the instant case, however, although the Veteran testified in his hearing that he felt he had some neurological impairment due to this disability, particularly in his upper extremities and hands, the Board finds that the preponderance of the medical evidence of record shows that there is no neurological impairment associated with his cervical spine disability. While the Veteran's December 2009 VA examination report found that the Veteran complained of some upper extremity numbness, the examiner was unable to identify the effected nerve due to the nonspecific nature of the complaints. Notably, the Veteran displayed no muscle wasting, atrophy, lesion, or loss of fine motor control. Likewise, positional sense, vibratory sense, and two point discrimination in both upper extremities was normal. Similarly, subsequent examination in May 2011 revealed both normal motor and sensory findings. In light of the essential normal physical findings, the Board concludes that a separate rating for neurological abnormalities associated with the Veteran's cervical spine condition is not warranted. The Board further finds that there have been no distinct periods during the relevant time period in which the Veteran's cervical spine disability was more than 20 percent disabling. He is accordingly not entitled to receive a "staged" rating. See Hart, supra. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim for an increased rating greater than 20 percent must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for right ankle arthritis In a February 2010 rating decision, the RO continued a 10 percent evaluation for the Veteran's service connected left ankle arthritis under Diagnostic Code 5271. The Veteran seeks a higher evaluation. Diagnostic Code 5010 addresses the issue of arthritis due to trauma, substantiated by X-ray findings, which is to be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Degenerative arthritis, when 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. When 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Code 5271 specifically applies to limitation of motion of the ankle. This code provides a 10 percent rating for symptomatology reflective of disabilities with moderate limitation of motion and a 20 percent rating for disabilities involving marked limitation of motion. A 20 percent is the maximum evaluation provided under Diagnostic Code 5271. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). According to Plate II of the Schedule for Ratings Disabilities, normal dorsiflexion of the ankle is zero to 20 degrees; and normal plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2012). As noted above, with regard to assigning an increased rating under Diagnostic Code 5271, a 20 percent rating is assigned for disabilities involving marked limitation of motion. Reviewing the evidence of record, the December 2009 VA examination report showed complaints of ankle pain with weakness, stiffness, swelling, giving way, and lack of endurance. He reported increased pain in the right ankle during the winter and in cold weather, which he estimated caused a moderate impairment of his usual daily activities. There was no finding of ankylosis. Right ankle range of motion was noted to be 10 degrees of dorsiflexion, with 20 being normal for the Veteran, and 30 degrees of plantar flexion, with 45 being normal for the Veteran. The examiner noted objective evidence of painful motion, instability, weakness, and tenderness on examination. The Veteran's right ankle was also noted to have pain, fatigue, weakness, and lack of endurance on additional range of motion testing, but no further reduction in range of motion. The Veteran was diagnosed with right ankle arthritis, with slight instability. This condition was noted to affect the Veteran's usual occupation and daily activities by causing decreased activity with walking or standing. Considering this level of symptomatology, the Board finds it consistent with a finding of moderate, not marked disability. In this regard, the Board particularly notes that the Veteran has only a slight instability, and still has over half a normal range of motion for his right ankle. The Board has considered the Veteran's testimony from his August 2012 hearing, in which he indicated that he had trouble with his ankle popping and swelling, and had to wrap it periodically in an elastic bandage for support. However, the Board also notes that the Veteran reported missing no time from work due to this disability. Thus, considering all evidence of record, the Board finds this disability most consistent with no more than moderate disability, which would warrant a 10 percent rating. With respect to granting an increased rating under Diagnostic Code 5010, the Veteran is already receiving a compensable evaluation for limitation of motion of the left ankle. Therefore, an increased rating cannot be assigned under Diagnostic Code 5010. The Board has reviewed the remaining diagnostic codes relating to ankle disabilities. However, the claims folder contains no evidence indicating that the Veteran's left ankle disability is manifested by ankylosis as contemplated by a higher evaluation under Diagnostic Code 5270. Likewise, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy are not shown. As such, an increased rating cannot be assigned under Diagnostic Codes 5272-5274. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274 (2012). With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under Deluca, the December 2009 VA examiner noted that joint function is not additionally limited by pain, weakness, fatigue, or endurance on repetitive use. Thus, the Board finds that the evidence of record shows that the Veteran is current properly rated as 10 percent disabled for his moderate ankle disability, and the preponderance of the evidence of record is against a grant of increased rating for this disability. The Board further finds that there have been no distinct periods during the relevant time period in which the Veteran's right ankle disability was more than 10 percent disabling. He is accordingly not entitled to receive a "staged" rating. See Hart, supra. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim for an increased rating greater than 10 percent must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert. Extraschedular Consideration For both the claims currently on appeal, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 Veteran's service-connected right ankle and cervical spine is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture, and these disabilities have not caused the Veteran to miss work frequently, nor have they required frequent hospitalizations. The Board, therefore, has determined that referral of these claims for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Rice Consideration In denying the Veteran's claim for increased ratings, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Board has reviewed the evidence of record and concludes that a claim for TDIU has not been raised. While the Veteran stated on an October 2010 VA Form 9, Appeal to Board of Veterans' Appeal, that the medication that he was taking has hampered his ability to find work and make a living, the Veteran has not contended that he is unemployable because of his service connected cervical spine and ankle disabilities. Rather, during his hearing before the Board, the Veteran acknowledged, despite his complaints of pain, fatigue, and sleep problems, he was able to force himself to continue working. Similarly, the remainder of the evidence of record does not raise the issue of unemployability due to these service-connected disabilities. The record reflects that the Veteran usually occupation was in construction including pipeline construction. While a December 2008 VA examination report notes that the Veteran was not working, his unemployment at the time was attributed to the completion of the job that he had been working on in September 2008. The December 2009 VA examination report does not suggest that the Veteran was unemployable, rather it was noted that the Veteran's disabilities had moderate effect on usually daily activities. Most recent, the May 2011 VA examination report notes that the Veteran had current employment duration was more than 20 years. The Veteran had lost no time from work during the past 12 month period. It was opined that the Veteran's disabilities, while resulting in decreased mobility in an occupational setting, had no effects on usual daily activities. In light of the foregoing, the Board concludes that the issue of entitlement to TDIU has not been raised in this case. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for a contusion of the paravertebral muscles in the cervical area, currently evaluated as 20 percent disabling, is denied. Entitlement to an increased rating for right ankle degenerative arthritis, currently evaluated as 10 percent disabling, is denied. ____________________________________________ DAVID WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs