Citation Nr: 1308874	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  09-14 495	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a higher initial evaluation for residuals of left ankle injury than the 10 percent assigned effective from February 18, 1998 through March 16, 2009.

2.  Entitlement to a higher initial evaluation for residuals of left ankle injury than the 20 percent assigned effective from March 17, 2009.

3.  Entitlement to a higher initial evaluation for left foot plantar fasciitis with left Achilles tendonitis than the noncompensable (zero percent) rating assigned effective from January 8, 2009.

4.  Entitlement to an earlier effective date for service connection for residuals of left ankle injury than February 18, 1998.


REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Harrigan Smith, Counsel


INTRODUCTION

The Veteran served on active military duty from September 1966 to February 1973.

The appeal comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, granting service connection effective from February 24, 1998, and assigning a 10 percent initial evaluation for residuals of left ankle injury.  By and April 2009 rating action the RO granted a higher initial evaluation for residuals of left ankle injury of 20 percent effective from March 17, 2009.  Also by that rating action the RO granted service connection for left foot plantar fasciitis with left Achilles tendonitis and assigned an initial noncompensable evaluation for that disorder, giving rise to the higher initial rating claim for that disorder also the subject of this appeal.  By a September 2010 rating action the RO granted an earlier effective date for service connection for residuals of left ankle injury of February 18, 1998, assigning the prior, 10 percent evaluation for that disorder from that date.

In the course of appeal the Veteran testified at a Decisions Review Officer (DRO) hearing in January 2009, and testified before the undersigned Veterans Law Judge in April 2011.  Transcripts of these hearings are contained in the claims file.

In November 2011, the Board remanded the issues of entitlement to higher initial evaluations for residuals of left ankle injury than the 10 percent assigned effective from February 18, 1998, and than the 20 percent assigned effective from March 17, 2009 and entitlement to a higher initial evaluation for left foot plantar fasciitis with left Achilles tendonitis than the noncompensable (zero percent) rating assigned effective from January 8, 2009, and denied an effective date prior to February 18, 1998 for service connection for residuals of left ankle injury.  The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court).  In July 2012, the Court granted a Joint Motion for Partial Remand (Joint Remand) by the parties to vacate and remand that part of the Board's November 2011 decision that denied an effective date prior to February 18, 1998 for residuals of left ankle injury.

The issues of entitlement to higher initial evaluations for residuals of left ankle injury than the 20 percent assigned effective from March 17, 2009 and entitlement to a higher initial evaluation for left foot plantar fasciitis with left Achilles tendonitis than the noncompensable (zero percent) rating assigned effective from January 8, 2009 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Board in July 1991 issued a decision denying service connection for residuals of left ankle injury. The Veteran did not appeal that Board decision.

2.  Clear and unmistakable error has not been alleged in the July 1991 Board decision.  Any perceived error in the July 1991 Board decision is not clear and unmistakable error, not being error which if not present it is absolutely clear (reasonable minds could not differ) that a manifestly different outcome in the case would have resulted at that time.

3.  On March 3, 1994, the Veteran submitted a letter to the VA addressing certain aspects of her claim for entitlement to service connection for residuals of a left ankle injury.

4.  Resolving all reasonable doubt in the Veteran's favor, an effective date of March 3, 1994 is warranted, with a 10 percent evaluation assigned, for service connection for the residuals of a left ankle injury.

5.  The Veteran's residuals of a left ankle injury have not caused marked limitation of motion during the time period from March 3, 1994 through March 16, 2009.


CONCLUSION OF LAW

1.  The criteria for entitlement to an effective date of March 3, 1994 have been met, with a 10 percent evaluation assigned, for entitlement to service connection for the residuals of a left ankle injury.   38 U.S.C.A. §§ 5101(a), 5110, 7103, 7104(b), 7111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.156(c), 3.158, 3.400, 20.1100, 20.1104, 20.1403 (2012).

2.  From February 18, 1998 through March 16, 2009, the schedular criteria for an initial disability rating in excess of 10 percent for residuals of left ankle injury have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5271 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

Under the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA), VA has an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp 2012); see also, 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012).

The law requires VA to inform Veterans of the evidence needed to substantiate their claims, what specific evidence they are responsible for obtaining, and what specific evidence VA will undertake to obtain.  38 U.S.C.A. § 5103(a).  VA regulations also specify that VA will notify Veterans to submit relevant evidence in their possession. 38 C.F.R. § 3.159(b).

The appeals for a higher initial rating for residuals of a left ankle injury and for entitlement to an earlier effective date for service connection for residuals of left ankle injury arise from disagreement with the initial rating and effective assigned after the grant of service connection.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to 'downstream' questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service records and pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Veteran was afforded opportunities to address her appealed claims for an increased initial disability rating and an earlier effective date for service connection for residuals of left ankle injury, and did so by submitted statements as well as testimony at hearings before a DRO and the undersigned Veterans Law Judge.  

VA provided the Veteran the opportunity to have a hearing.  The appellant testified before the undersigned Veterans Law Judge in April 2011.  In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge explained the evidence necessary to establish her claims, and inquired about outstanding medical evidence and dates of treatment.  Neither the Veteran nor her representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) extant at the time of the hearing.

The Veteran was also otherwise afforded assistance in development of her claim.  Exhaustive efforts were undertaken to obtain records, including service records, in furtherance of her claim, as extensively documented throughout the claims folders.  She was duly informed of records development including of records obtained, and by implication of records not obtained, by issued rating actions, statement of the case (SOC), and supplemental SOCs.

In view of the foregoing, the action taken by the RO complies with all of the requirements of law, thereby allowing the Board to consider the issue on appeal adjudicated herein.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Claim for an Earlier Effective Date for Service Connection for Residuals of Left Ankle Injury

The Veteran contends that she should be granted service connection for her residuals of left ankle injury earlier than the February 18, 1998, effective date assigned.  She asserts that she should be afforded an effective from the date of her original submission of a claim for service connection for that disorder in October 1984.

The effective date of an award of disability compensation based on direct service connection shall be the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2).  The effective date of the grant of benefits based on a reopened claim shall be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(r) .

Under the provisions of 38 C.F.R. § 3.155 any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim.  Such an informal claim must identify the benefit sought.  Upon receipt of an informal application, an application form will be sent to the claimant, and if a formal claim is filed within one year of that date it will be considered filed as of the date of the receipt of the informal claim.

A decision issued by the Board is final, unless appealed to the Court or another exception to finality applies (e.g., the Board orders reconsideration of the decision).  38 U.S.C.A. §§ 7103 , 7104(a) (West 2002); 38 C.F.R. §§ 20.1100 , 20.1104 (2012).  Under 38 U.S.C.A. § 7104(b), finality attaches once a claim is disallowed. There are, however, exceptions to the rule of finality in the context of Board's July 1991 decision in this case (as discussed infra): a claim may be reopened with new and material evidence; and a Board decision is subject to revision on the grounds of clear and unmistakable error (CUE).  The former exception - a request to reopen the claim - is the basis of the grant of service connection for residuals of left ankle injury effective from February 18, 1998, and the latter exception - CUE in a prior Board decision - has not been argued in the context of the July 1991 Board decision.

Under 38 U.S.C.A. § 7111 , the Board has been granted the authority to revise a prior decision of the Board on the grounds of CUE.  A claim requesting review under the statute may be filed at any time after the underlying decision is made. See 38 C.F.R. § 20.1400 (2012).  The statute and implementing regulation provide that a decision by the Board is subject to revision on the grounds of CUE.  If evidence establishes the error, the prior decision shall be reversed or revised. A request for revision of a Board decision based on CUE may be instituted by the Board on its own motion or upon request of the claimant.  38 U.S.C.A. § 7111 ; 38 C.F.R. § 20.1400.

In the implementing regulation, CUE is defined as:

a very specific and rare kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.  38 C.F.R. § 20.1403(a).

The evidence to be reviewed for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made.  To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal that, had it not been made, would have manifestly changed the outcome when it was made.  If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.  38 C.F.R. § 20.1403(c).  Examples of situations that are not CUE are:

(1) Changed diagnosis.  A new medical diagnosis that 'corrects' an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.  38 C.F.R. § 20.1403(d).

CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.  38 C.F.R. § 20.1403(e).

In other cases prior to promulgation of this regulation, the Court has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  The Court has also reiterated that a finding that there was such error 'must be based on the record and the law that existed at the time of the prior . . . decision.'  Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992).  That is to say, subsequently developed evidence may not be considered in determining whether error existed in the prior decision.  Porter v. Brown, 5 Vet. App. 233, 235-36 (1993).

The mere misinterpretation of facts does not constitute CUE.  Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); see also Dobbin v. Principi, 15 Vet. App. 323, 326 (2001).  Prior case law established that the error must be one which would have manifestly changed the outcome at the time that it was made.  Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993).  'It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error.'  Fugo v. Brown, 6 Vet. App. 40, 43 (1993).

In a November 2012 statement, the Veteran alleged that the Board had committed clear and unmistakable error in the July 1991 decision, in that the Board had stated that "[a]t no time has she provided objective medical evidence to show that an injury was sustained to her ankle or treated during service" but that there was evidence in the record at the time reflecting a "chronic left ankle strain."  The evidence referred to by the Veteran is a part of VA medical records showing treatment from April 1983 to December 1985, showing that the Veteran was assessed with a chronic left ankle sprain and left ankle instability.  These records were acknowledged in the Board's January 1991 decision, and the evidence was weighed in the analysis of the Veteran's claim.  The Board acknowledged that the evidence submitted by the Veteran in support of her claim had been related exclusively to treatment rendered as of 1983, "many years following her release from active duty in March 1971."  While this language was just before an inadvertent printing error in the decision, the Board clearly had taken these records into account, weighed the evidence and concluded that they did not reflect evidence that the Veteran's left ankle disability was incurred in or related to active duty.  As noted above, disagreements regarding the weighing of the probative value of evidence cannot constitute a claim for CUE.  38 C.F.R. § 20.1403(d).

Even an allegation of grave procedural error, as Veteran has argued, for example, that she was never informed that she could submit lay evidence to support the injury to her knee in service even where, as here, service treatment records appear to be lost or destroyed, and that VA hence failed in its duty to assist, cannot give rise to an exception to the rule of finality.  Tetro v. Principi, 314 F.3d 1310, 1313 (Fed.Cir. 2003).

In her November 2012 statement, the Veteran also argues that the VA breached its duty to assist due to grave procedural error.  The Veteran recognized that the Board cited the Tetro case, but argued that Tetro did not address the situation, and provided a quote from the concurring opinion in Cook v. Principi, 318 F. 3d 1334, 1339 (2002).  It is unclear whether the Veteran is making another argument that the perceived "grave" error in the duty to assist should be found as CUE in the January 1991 Board decision.  However, the Federal Circuit, in Cook, held that "a breach of the duty to assist cannot constitute an outcome determinative error.  Without the benefit of additional evidence that might have been in the record but for the breach, we may only conclude that, as a result of the breach, the record was incomplete. This cannot be an 'outcome-determinative' error."  Cook v. Principi, 318 F. 3d at 1346.  The quoted passage does not reflect an opinion in opposition to this holding.  The following is the quote, in its entirety:

Where there has been a material breach of the statutory duty to assist at some time in the past, and that breach by the government prevented the Veteran from discovering the new and material evidence at an earlier date, a question arises as to whether retroactive relief is available in a new and material evidence proceeding.  An argument for retroactivity might have particular force where the violation of the duty to assist was unknown to the Veteran at the time of the original application, for example, where the Veterans Administration had pertinent undisclosed information in its files and the Veteran was unaware that a proper search had not been conducted. Indeed, the government in this case appears to concede that in such circumstances retroactive relief would be available in a new and material evidence proceeding by virtue of 38 C.F.R. § 3.400(q)(2).FN*

However, the Veteran is using this argument in referring to a perceived "grave" error in the duty to assist in the Board's 1991 decision.  This quote was provided in the context of a claim to reopen.  At the time of the Board's 1991 decision, the Veteran's clam was an original claim for entitlement to service connection, not a claim to reopen a previously denied claim.  In addition, this comment was provided in a concurring opinion, and was not the holding of the case.  As such, this argument does not provide any further merit in terms of the finality of the Board's 1991 decision.  

Even if the Board's decision to deny the claim had been based on an incomplete or erroneous analysis of law or fact, a conclusion the Board does not reach in this case, it still would be an adjudication of the claim to which the rule of finality attaches.  The Veteran's argument that the Board failed to appropriately consider her lay statements and the loss of service treatment records do not serve to vitiate the finality of its decision in July of 1991.  Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (Fed.Cir.2005) (failure of Board to consider all aspects of a claim insufficient for a finding of CUE; defined criteria for a finding of CUE must be met).  Additionally, the Board was not required to discuss in detail every item of evidence.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Regulation, 38 C.F.R. § 3.303(a), requiring service connection determinations to be based on review of the entire evidence of record, does not require VA to analyze and discuss the entire evidence of record to ensure that all relevant and favorable evidence has been considered, rather the regulation requires VA to be thorough, to weigh all before it, and then make a decision.).

The appellant in this case first submitted a claim for service connection for a left ankle disorder in October 1984.  That claim was first denied by the RO in March 1985, and appellant appealed that decision to the Board.  In the course of that appeal the claim was denied on multiple occasions by the RO, and the Board in January 1989 remanded the claim for additional development.  Ultimately, however, the Board denied the claim by a July 1991 decision and the Veteran did not appeal that denial to the United States Court of Appeals for Veterans Claims (Court).  Development actions prior to that July 1991 Board denial reflect the Veteran's consistent contentions that she first injured the ankle in service playing softball, with recurrent sprains or other difficulty subsequent to that time.  However, service treatment records as contained within the claims file did not reflect treatment or other complaints or findings of a left ankle injury or disability.  The appellant argued that her service treatment records were incomplete, and that she did in fact receive treatment for the left ankle injury and subsequent disability in service.  However, searches and queries directed at official military sources, service hospitals, and the National Personnel Records Center all ultimately failed to produce additional service treatment records.  There were indications including replies from the NPRC to the effect that the appellant's service treatment records may have been associated with her spouse's records because he had also been in the military.  However, queries to indicated sources including to the RO in Montgomery, Alabama, ultimately produced no additional records of treatment contemporaneous with the appellant's service.

The Board denied the appellant's claim in its July 1991 decision ostensibly based on the absence of medical evidence dating from service supportive of injury or disability in service, to support the claim.  As noted above, that Board decision was not appealed and hence was final.  While arguments may be raised as to whether the Board in its July 1991 decision appropriately weighed the evidence, that cannot be a basis for CUE to vitiate the finality of that decision.  38 C.F.R. § 20.1403(d). Similarly, the finality of that decision cannot be disturbed based on any failure to assist the appellant or otherwise to conduct additional development. Id.

The Board finds that there was no error in the Board's July 1991 decision about which reasonable minds could not differ and for which it is absolutely clear that a different outcome would have resulted had the mistake not been made.  38 C.F.R. § 20.1403(c).  The one error in the July 1991 Board decision which the appellant calls attention to is an error in preparing the written decision.  Namely, the analysis portion of that decision leaves off in its discussion in the middle of a sentence, with the analysis of evidence for and against the presence of disability in service thereby incomplete in the prepared decision.  The Board does not dispute that this error is present in the July 1991 decision.  But it is also obvious that had this error not been made the outcome would have been no different.  The intent of the Board decision to deny the claim is clear and unequivocal even in the absence of this missing portion of the analysis.  Hence, this error in the preparation of the decision does not constitute CUE and presents no indication that CUE was present in the July 1991 decision; and CUE in that decision is not otherwise found.  Id.

The Board recognizes the Veteran's frustration with the unfruitfulness of her past and more recent efforts to secure missing service treatment records, but absence of service treatment records is not a recognized basis for granting an earlier effective date for service connection.  38 C.F.R. § 20.1403.  Similarly, while the Veteran has averred that she was not appropriately informed that she could support her prior claim for service connection with lay evidence or other non-official evidence of in-service injury or disability of the ankle, any such failure to assist in development of her claim cannot serve as a basis of CUE in the Board's July 1991 decision, and hence cannot support the claim for an earlier effective date for service connection for residuals of left ankle injury.  38 C.F.R. § 20.1403(d).

RO decisions addressing the Veteran's claim for service connection for residuals of left ankle injury prior to the Board's July 1991 decision are subsumed in that Board decision for purposes of the Veteran's earlier effective date claim, and hence any assertions of error or otherwise regarding those earlier RO adjudications cannot serve as a basis for assignment of an earlier effective date for service connection for residuals of left ankle injury, precisely because of the undisturbed finality of the Board's July 1991 decision.  Pursuant to 38 C.F.R. § 20.1104 (2012), when a determination of the agency of original jurisdiction is affirmed by the Board, the determination is subsumed by the final appellate decision.

The Board has reviewed the evidence of record, and notes a letter from the Veteran to the Secretary of the VA dated March 3, 1994.  In this letter, the Veteran refers to her initial claim in October 1984 for entitlement to a left ankle injury, but speaks of her claim in the present tense, for example, noting that "my claim does not seem to be as important as the frustration of not receiving thorough compliance of locating my records."  In addition, the Veteran reported that there was medical evidence available that included physicals and a visit to a military medical facility.  These records would help to support her claim.  As such the Board finds that, resolving all reasonable doubt in favor of the Veteran, this statement served to identify the benefit sought and expressed an intent to present a new or reopened claim for service connection for a left ankle disability.  38 C.F.R. § 3.155. 

Accordingly, an effective date of March 3, 1994 is warranted for service connection for residuals of a left ankle injury.  38 U.S.C.A. § 5110 ; 38 C.F.R. § 3.400.

Evaluation of initial rating for residuals of a left ankle injury, for the period from March 3. 1994 through March 16, 2009

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be 'staged.'  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).

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).

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'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran is service-connected for residuals of a left ankle injury under Diagnostic Code 5271, pertaining to limited motion of the ankle.  For the period from March 3, 1994 through March 16, 2009, the rating assigned was 10 percent.  Under this Diagnostic Code, moderate limitation of motion is assigned a 10 percent disability rating and marked limitation of motion is assigned a 20 percent disability rating.  38 C.F.R. § 4.71, Diagnostic Code 5271 (2012).  Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (2012).

VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

The provisions of 38 C.F.R. § 4.40 state that 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.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.

Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59.  The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

Private medical records from September 1997 show that the Veteran's left ankle had no effusion,  but had instability.  She had no tenderness over the anterior talofibular ligament.  She was neurovascularly intact.  The impression was symptoms from  chronic left ankle instability.

Private medical records from February 2001 show that the Veteran complained of left ankle pain with squatting while doing yardwork.  She indicated that she had intermittent swelling, pain over the medial melleolus and instability walking on unlevel surfaces or standing for protracted periods of time.  On examination, the Veteran had negative effusion.  Dorsiflexion was to 14 degrees, and plantar flexion was to 28 degrees.  She had 2+ anterior instability of the left talotibial joint with pain over the anterior lateral aspect of it.  Neurovascular status to the left foot and ankle were intact.  A February 2001 X-ray revealed no evidence of gross fracture, dislocation or gross degenerative changes.

VA medical records reflecting treatment in August 2002 show that the Veteran complained of pain on the medial aspect of the left ankle and that she had frequent sprains.  Upon examination, she had normal dorsi and plantar flexion of the ankle.  She reported pain on inversion of the ankle, and there was lateral laxity.  An X-ray, including stress view, revealed that the ankle opened laterally over 30 degrees due to a deficient lateral collateral ligament.  Mild degenerative changes were noted at the areas of the medial and lateral malleolus.  November and December 2002 reflect left ankle instability.

VA medical records show that in April 2004, the Veteran reported that she had injured her left ankle and was having severe swelling and bruising of the left ankle.  On X-ray, there was an avulsion fracture of the lateral malleolus.  She was placed in an ambulatory cast.  In June 2004, the Veteran was seen for follow-up, when she reported that her left ankle was doing much better and that she was having minimal to no discomfort with ambulation with the ambulator cast.  Upon examination, there was no swelling or redness present and no pain upon palpation.  A July 2004 VA X-ray revealed a previously noted fracture of the distal fibula with no callous formation seen at the fracture site.  There were no new fractures or dislocations seen.  Mild soft tissue swelling was noted.  

In January 2005, the Veteran reported limited range of motion, strength and function of the left ankle with decreased functional mobility skills and ambulation ability.  Upon examination, the Veteran had deficits in dorsiflexion with knee extension and eversion on the left.  The assessment was decreased range of motion, strength and function.  The Veteran underwent physical therapy in January and February 2005.  Her range of motion of her right ankle was dorsiflexion with knee extension to 8 degrees and plantar flexion to 57 degrees.

At her hearing, the Veteran reported instability in the left ankle and that she was provided with a brace, but that it was large and she could not wear it with her shoes.

Private medical records from August 2005, from the Radnothy Perry Orthopaedic Center show that the Veteran had been last seen for her left ankle in January 2005, and that she still had some symptoms in her left ankle, which were nothing significant and, in fact, did not require any type of treatment.  Records dated in August 2007 from this same provider show that the Veteran reported pain in her left ankle and multiple left ankle sprains.  She had full range of motion in her left ankle.  A magnetic resonance imaging study (MRI) revealed a tear in the peroneal tendon.  She was provided with a Cam walker.  In October 2007, she was full range of motion of the ankle without pain.  The Cam walker was discontinued in November 2007.

November 2008 VA medical records show reports of chronic left ankle pain.  The examiner noted that there was no deformity, skin changes, pain on range of motion, or edema, and that her strength was intact.  January 2009 VA medical records show that the Veteran had lateral instability in her left ankle.        

The Board finds that, based upon the evidence in the record, the Veteran's left ankle disability does not warrant a higher disability rating  for the period from March 4, 1994 through March 16, 2009.  In order to warrant a higher disability rating under Diagnostic Code 5271, the evidence would need to reflect that the Veteran's left ankle disability caused marked limitation of motion.  In this case, the evidence does not reflect this level of limitation of motion.  In fact, at several points during this time period, the Veteran had full range of motion of her left ankle.  While she reported pain in her left ankle, it does not appear that this pain caused any limitation of motion to be considered "marked."  Mitchell.  

The Board has considered rating the Veteran under other Diagnostic Codes pertaining to disabilities of the left ankle; however, there is no evidence in the claims file that the Veteran's service-connected left ankle disability has caused ankylosis, malunion of the os calcis or astralgus, or astragalectomy.  38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2012).

Extraschedular considerations

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).   

Generally, the degrees of disability specified in the Rating Schedule 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. § 3.321.  The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b).  While the Veteran has symptoms associated with her left ankle disability that are not considered in the rating criteria for limitation of motion of the ankle, including instability, the Board notes here that there is no evidence that this instability has caused an exceptional or unusual disability picture.  The effects of the Veteran's left ankle disability have been compensated by her 10 percent disability rating.  Thus, the evidence does not support referring this case for an extraschedular evaluation.

TDIU considerations 

The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2012).  

The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  

In this case there has been no allegation or evidence of unemployability.  The Veteran has reported that she was employed on a full time basis until 2005, when she retired because she was eligible by age or duration of work.  Accordingly, the question of entitlement to TDIU has not been raised.


ORDER

An earlier effective date of March 3, 1994, for service connection for residuals of left ankle injury, is granted, with a 10 percent evaluation assigned.

An initial schedular disability rating in excess of 10 percent for the period from March 3, 1994 through March 16, 2009 for residuals of a left ankle injury is denied.





REMAND

The claims for a higher initial ratings for initial evaluation for residuals of left ankle injury effective from March 17, 2009 and for left foot plantar fasciitis with left Achilles tendonitis.  The Board noted most recent treatment records by V.M.T. and the Veteran's own presentation and testimony at her hearing before the undersigned in April 2011 revealed that the Veteran had been treated for her left foot and ankle with an immobilizing cast or boot subsequent to her most recent VA examination.  The Board found that this was is preclusive of ascertaining the level of disability during the interval of wearing that boot, and also requires ascertainment of the level of disability resulting following that boot therapy, and remanded for another examination.  The examiner was to note that the examination was for reassessment of the Veteran's service-connected left ankle and foot disabilities after wearing a immobilizing boot.  In addition, the examiner was to differentiate, to the extent reasonably feasible, disability associated with the Veteran's service-connected residuals of left ankle injury and left foot plantar fasciitis with left Achilles tendonitis, from that associated with other disorders impacting the left foot or ankle, inclusive of conditions indentified in recent treatment records, including (but not limited to) a possible ruptured left Achilles tendon, a neuroma of the third interspace of the left foot, peroneal tendonitis, and metatarsalgia.  However, the examiner did not adhere to these instructions.  As such, another opinion is necessary to determine the current nature and severity of the Veteran's left foot and ankle disabilities.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran's claims file should be provided to the VA examiner who provided the January 2012 examination and opinion, to provide an addendum with responses to the following with regard to the current nature and severity of the Veteran's left ankle and left foot disabilities.

The claims folder must be made available to and reviewed by the examiner and this should be noted.

The examiner should note that this examination is necessitated by recent records of treatment by V.M.T., DMP, as well as the Veteran's own testimony informing of more recent findings of conditions affecting the left foot or ankle and more recent treatment inclusive of an immobilizing boot or casting of the foot and ankle. 

The examiner must differentiate, to the extent reasonably feasible, disability associated with the Veteran's service-connected residuals of left ankle injury and left foot plantar fasciitis with left Achilles tendonitis, from that associated with other disorders impacting the left foot or ankle, inclusive of conditions indentified in recent treatment records, including (but not limited to) a possible ruptured left Achilles tendon, a neuroma of the third interspace of the left foot, peroneal tendonitis, and metatarsalgia.  If additional medical conditions may be considered as part and parcel with or indistinguishable from service-connected disability, the examiner should so state.

The examiner is advised that the Veteran is competent to report symptoms, and that the Veteran's reports must be considered in formulating the opinion.

Reasons should be given for all opinions.

2.  Thereafter, readjudicate the remanded claims de novo. If any benefit sought by the remanded claims is not granted to the Veteran's satisfaction, provide her and her representative with a Supplemental Statement of the Case and an appropriate opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs