Citation Nr: 1309771 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 07-24 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to an increased rating for a left ankle disability, rated 20 percent prior to December 18, 2010, and 30 percent as of December 18, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A 100 percent rating was granted from August 8, 2006, to September 30, 2006, for the Veteran's left ankle disability based on surgical treatment necessitating convalescence. The previously established 20 percent rating was continued, effective October 1, 2006. In June 2008, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This matter was remanded by the Board for additional development in February 2009 and October 2010. That development has been substantially completed and adjudication now may proceed. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). A February 2012 rating decision by the Appeals Management Center granted service connection and a 0 percent rating for a left ankle scar, effective as of the date of the aforementioned surgical treatment. The Veteran has not appealed the rating assigned for the left ankle scar and it is not before the Board. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302 (2012). The February 2012 rating decision increased the Veteran's left ankle disability rating to 30 percent, effective December 18, 2010. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The following decision is based on review of the Veteran's claims file and the Virtual VA electronic claims file. Both the Board's February 2009 and October 2010 remands referred the issue of the Veteran's entitlement to service connection for a left knee disability, to include as secondary to a service-connected left ankle disability, to the Agency of Original Jurisdiction (AOJ). As there is no indication that any development or adjudication has occurred, the claim is again referred to the AOJ. FINDINGS OF FACT 1. The Veteran's left ankle has manifested ankylosis with the ankle at or near neutral position since his August 2006 surgery. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but not higher, are met for a left ankle disability as of August 9, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.16, 4.20, 4.21, 4.27, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5270-5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the AOJ, of any information and any evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). With respect to increased rating claims, general rather than specific information of the evidence needed to substantiate the claim must be provided to the claimant. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). That includes evidence demonstrating a worsening or increase in severity of the service-connected disability at issue and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Information on how effective dates are assigned also must be provided. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged prejudice with respect to the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified by an August 2006 letter of the criteria for establishing an increased rating, the evidence required, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings, which was noted to include consideration of the impact on employment, and effective dates. That letter accordingly addressed all notice elements and predated the initial adjudication by in March 2007. Nothing more is required. A March 2009 letter addressing all notice elements, a February 2010 supplemental statement of the case, and a February 2012 letter addressing some of these elements exceeded what is required. The March 2009 letter, which was sent pursuant to the Board's February 2009 remand particularly exceeded what is necessary by providing specific notice. Even if a defect with respect to notice content or timing existed, it is harmless because the Veteran has had a meaningful opportunity to participate in the processing of this appeal. That includes participation in a hearing before the Board. The essential fairness of adjudication has not been impacted. VA is required to aid a claimant in the procurement of pertinent records, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159(c) (2012). VA also is required to provide a medical examination or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. §§ 3.159(c)(4) (2012). The Veteran's VA treatment records have been obtained through VA's efforts, to include those undertaken in compliance with the Board's remands and his submitting them. No private treatment records have been obtained by VA. However, no private facility has been identified by the Veteran as providing pertinent treatment. He also did not submit any pertinent private treatment records on his own behalf. VA medical examinations were conducted in November 2006 and, in compliance with the Board's October 2010 remand, in December 2010. Each examiner reviewed the Veteran's claims file and medical records, interviewed him, and undertook an assessment of his ankle. Diagnoses were made by each, and the latter examiner rendered an opinion regarding the impact of the Veteran's left ankle disability on his employability. All questions necessary to render the determinations made herein thus were answered. Accordingly, the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Neither the Veteran nor his representative has identified any further development necessary for a fair adjudication of the claim that has not been completed. The record also does not indicate any such development. Therefore, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Appellate review therefore may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Rating The Veteran seeks an increased rating for his left ankle disability. He contends that it is more severe than contemplated by the respective 20 percent and 30 percent ratings that have been assigned. Disability ratings are based upon VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155 (West 2002). A rating is assigned by comparing the extent to which a Veteran's service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the criteria for the percentage ratings. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.10 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2012). Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and an increase in rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Consideration nevertheless must be given to whether staged ratings are warranted. Where the evidence contains factual findings that demonstrate distinct time periods in which a disability exhibited symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a distinctive ratings for each of the time periods is warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2012). Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness. 38 C.F.R. §§ 4.40, 4.59 (2012). It also may be due to excess fatigability or incoordination. 38 C.F.R. § 4.45 (2012). A higher rating for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's left ankle disability was originally rated under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5271 (2012). Hyphenated Diagnostic Codes are used when a rating for a particular disability under one Diagnostic Code is based upon rating under another Diagnostic Code. 38 C.F.R. § 4.27 (2012). The four digits before the hyphen is the Diagnostic Code for the disability. 38 C.F.R. § 4.27 (2012). A Diagnostic Code ending in 99 indicates that the disability is not listed in the Schedule for Rating Disabilities, while 52 indicates that it is related most closely to the listed musculoskeletal disabilities. 38 C.F.R. §§ 4.20, 4.27 (2012). The four digits after the hyphen is the Diagnostic Code for the disability specifically found to be most analogous. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5271 addresses limited motion of the ankle. Marked limitation of motion of the ankle warrants a maximum 20 percent rating under Diagnostic Code 5271. 38 C.F.R. § 4.71a (2012). Normal range of motion for the ankle is from 0 degrees to 20 degrees of dorsiflexion and from 0 degrees to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2012). Since December 18, 2010, the Veteran's left ankle disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2012). Diagnostic Code 5270 concerns ankylosis of the ankle. A 20 percent rating requires ankylosis in plantar flexion less than 30 degrees. Ankylosis in plantar flexion between 30 degrees and 40 degrees, or ankylosis in dorsiflexion between 0 degrees and 10 degrees warrants a 30 percent rating. The maximum 40 percent rating is assigned for ankylosis in plantar flexion more than 40 degrees or ankylosis in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a (2012). Ankylosis is immobility and consolidation of a joint, or stiffening and fixation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992); Nix v. Brown, 4 Vet. App. 462 (1993); Shipwash v. Brown, 8 Vet. App. 218 (1995); Dinsay v. Brown, 9 Vet. App. 79 (1996). The Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An assessment of the probative value of the lay evidence in addition to the medical evidence therefore must be undertaken. An assessment of all elements affecting the probative value of evidence must be undertaken. 38 C.F.R. § 4.6 (2012). Lay evidence may be sufficient by itself to support a claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). That is the case where the evidence is both competent and credible. Competency is a legal concept determining whether testimony may be heard and considered, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6. Vet. App. 465 (1994). A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his personal knowledge. Layno v. Brown, 6. Vet. App. 465 (1994). In weighing credibility, discounting of competent testimony or statements from a lay person may occur in the light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors for consideration include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible. Reasonable doubt shall be resolved in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran prevails when the evidence supports the claim or is in relative equipoise, but does not prevail when the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review entire record but is not required to discuss each piece of evidence). The evidence leads the Board to conclude that a rating of 30 percent, but not higher, is warranted for the Veteran's left ankle disability as of August 9, 2006. A November 2006 VA medical examination noted that the Veteran did not have ankylosis in his left ankle joint. A December 2010 VA medical examination noted ankylosis in his left ankle joint. The Board finds that the evidence is at the very least in equipoise and resolves reasonable doubt in favor of the Veteran in finding that there is left ankle joint ankylosis. The Veteran underwent surgery for his left ankle disability in August 2006. VA treatment records specifically document that he underwent a successful left ankle fusion or arthrodesis because of traumatic arthritis of the left tibiotalar joint in August 2006. Arthrodesis is the surgical fixation of a joint by a procedure designed to accomplish fusion of the joint. It is also known as artificial ankylosis. The Board finds that the Veteran's left ankle joint has been ankylosed since his August 2006 surgery. Ankylosis in dorsiflexion between 0 and 10 degrees is consistently shown thereafter, while ankylosis in dorsiflexion at more than 10 degrees, in plantar flexion at more than 40 degrees, or with abduction, adduction, inversion, or eversion deformity is not shown at all by the medical evidence of record. As would be expected with ankylosis, whether artificial or natural, a June 2008 VA treatment record shows that the Veteran had 0 degrees of motion in his tibiotalar joint. That includes dorsiflexion and plantar flexion. The November 2006 VA medical examination shows that the Veteran had between 0 and 5 degrees of dorsiflexion and plantar flexion, while the December 2010 VA medical examination shows that he had between 0 and 5 degrees dorsiflexion and between 0 and 10 degrees plantar flexion. While there may be some trace residual motion, the Board finds that those readings are tantamount to anklylosis. Those measurements convey that the ankle is fixed at or near the 0 degree neutral position. No mention was made to abduction, adduction, inversion, or eversion deformity in any VA treatment records. There was no angulation at either VA medical examination. Accordingly, the Board finds that a 30 percent rating, but not higher, is warranted under Diagnostic Code 5270, effective August 9, 2006, the date of the surgery to fix the Veteran's ankle. Prior to that date, the evidence did not show ankylosis. Since an rating higher than the maximum rating for limitation of motion is assigned, it is unnecessary to consider any additional functional loss. Johnston v. Brown, 10 Vet. App. 80 (1997). Consideration has been given to use of additional Diagnostic Codes addressing the ankle. Diagnostic Code 5272 is for ankylosis of the subastragalar or tarsal joint. Diagnostic Code 5273 concerns malunion of the os calcis or astragalus. Finally, Diagnostic Code 5274 pertains to astragalectomy. None of those Diagnostic Codes is applicable because there is no indication that the Veteran has left ankle ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or has undergone an astragalectomy. Further, none of these Diagnostic Codes allows for a rating higher than 30 percent. Each has a maximum rating of 20 percent. 38 C.F.R. § 4.71a (2012). With actual loss of use of the foot, a 40 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5167 (2012). Loss of use of a foot exists when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63 (2012). The determination will be made on the basis of the actual remaining function in terms of balance and propulsion which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63 (2012). The Veteran's representative argues for use of Diagnostic Code 5167 and for a finding of loss of use of the foot. However, there is no indication that the Veteran has so little remaining function in his left foot as a result of his left ankle disability that he would be equally well served by amputation followed by use of a prosthetic appliance. Gait problems, to include poor propulsion, were detected at both the November 2006 and the December 2010 VA medical examinations. So were balance problems, in that the Veteran's use of a cane was noted. Yet he reported that he could stand, albeit not for long, and could walk, albeit not far, at the examinations. He is competent to so report those capabilities because those abilities are within his personal experience. He is credible because there is no reason to doubt his reports. The Veteran additionally competently and credibly testified at the June 2008 Video Conference hearing that he was able to walk with a single-point cane, although he sometimes fell. In sum, he has difficulties with balance and propulsion but is capable to some level of both. Therefore, the Board finds that the he has more use than would be served by amputation and thus loss of use of the foot is not shown. The above determination assigning a 30 percent rating for the Veteran's left ankle disability as of August 9, 2006, involve application of the VA Schedule for Rating Disabilities, applied on a schedular basis. It is possible to assign a rating on an extraschedular basis. 38 C.F.R. § 3.321(b) (2012). There are three steps to be taken regarding extraschedular ratings. First, the rater must make a determination of whether the evidence presents such an exceptional disability picture that the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. Thun v. Peake, 22 Vet. App. 111 (2008). If the rating criteria are inadequate, the rater must proceed to determine whether the Veteran's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). If the related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran's representative has argued for an extraschedular rating. Yet there is no indication that the Veteran's left ankle disability cannot be contemplated adequately by the applicable schedular criteria. This disability is manifested primarily by ankylosis, which is accounted for by the schedular rating criteria. Higher ratings are available for more disabling forms of ankylosis, but that is not shown by the evidence of record. The Veteran competently and credibly has reported manifestations of pain, discomfort, tenderness, stiffness, weakness, and swelling. His spouse and daughter have reported the same. They are competent because they are capable of observing those manifestations in the Veteran. They are credible because there is no reason to doubt their assertions. Although pain and the other manifestations are not specifically accounted for by the schedular rating criteria, they are accounted for by associated regulations. A higher rating is possible. The rating assigned accurately describes the severity of the Veteran's left ankle disability because, the higher schedular rating is not warranted. The effect the disability has on him is encompassed by the assigned rating. The effects include pain and the other manifestations, taking pain medication, use of a cane, occasionally falling, and limitations with standing and walking. Because the applicable schedular rating criteria are adequate, the Board finds that the Veteran does not manifest an exceptional left ankle disability picture. Discussion of whether he exhibits related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary. However, that the Veteran retired in the early 2000s, that he was deemed incapable of physical employment, but capable of sedentary employment in a January 2012 VA medical opinion concerning his left ankle disability. The Board finds that the disability does not result in marked interference with employability. There is no indication he has been hospitalized for his left ankle disability following his August 2006 surgery. Therefore, the evidence does not show frequent hospitalization. Therefore, referral for consideration of the assignment of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2012). "A request for entitlement to a total rating for compensation purposes due to individual unemployability by reason of service-connected disabilities, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities ... as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009); Comer v. Peake, 552 F.3d 1662 (Fed. Cir. 2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, consideration of a TDIU as a component to the higher rating. The Veteran's service-connected PTSD has been schedularly rated 100 percent since March 3, 2009. A TDIU may be assigned only where the schedular rating is less than total. 38 C.F.R. § 4.16(a) (2012). With respect to the period prior to March 3, 2009, the evidence shows that the Veteran was not working. He and his family members indeed competently and credibly reported retirement in the early 2000s. They indicated that he could no longer work from that time forward with his left ankle disability. However, they also attributed his inability to work to his psychiatric state. An opinion that the Veteran's left ankle disability precluded physical, but not sedentary employment was rendered in January 2012, but applies equally to the period prior to March 3, 2009, because the disability was of the same severity then as in January 2012. Accordingly, it cannot be said that the Veteran's left ankle disability alone was of sufficient severity to produce unemployability. A TDIU due to all of the Veteran's service-connected disabilities, to include his left ankle disability, indeed was denied by the RO in a September 2009 RO rating decision. He did not appeal that determination. The Board finds that no further discussion of entitlement to TDIU Is needed. Consideration finally has been given to whether a staged rating is warranted. However, the Board finds that prior to August 9, 2006, the criteria for a higher rating were not met, and as of August 9, 2006, the criteria for the same 30 percent rating, but not higher, have been met continuously. Accordingly, the Board finds that the evidence supports the assignment of a 30 percent rating for a left ankle disability as of August 9, 2006. However, the preponderance of the evidence is against the assignment of any higher rating or of an earlier effective date for the assignment of the 30 percent rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A 30 percent rating, but not higher, is granted for a left ankle disability as of August 9, 2006. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs