Citation Nr: 1310032 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 04-27 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim seeking service connection for a left knee disability. 2. Whether new and material evidence has been received to reopen the claim seeking service connection for a right knee disability. 3. Entitlement to an increased disability rating for a right ankle disability, in excess of 10 percent. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from September 1969 to August 1971. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia dated in August 2003 (right ankle) and June 2009 (right and left knee). Separate substantive appeals to the Board were submitted by the Veteran and will be address below. The Veteran did not report for a Board hearing regarding the right ankle rating claim that was scheduled to be conducted at the RO in September 2006. To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear regarding this claim. Accordingly, the Board will proceed to a decision on that issue as if the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2012) (failure to appear for a scheduled hearing treated as withdrawal of request). In January 2007, the Board remanded the issue of entitlement to an increased disability rating for a right ankle disability for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board also remanded the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for issuance of a Statement of the Case, having found that the RO denied such a claim in a September 2006 rating decision, and that the Veteran filed a notice of disagreement in November 2006, but that no Statement of the Case had yet been issued. Subsequently, upon review of the claims file, the RO determined that the September 2006 rating decision and the November 2006 Notice of Disagreement pertained to another veteran and that these documents had been mistakenly placed in the claims file at the time of the Board's January 2007 review and remand. The pertinent documents were removed from the claims file and a memorandum containing the RO's findings was placed in the file. Accordingly, the Board finds that the previously identified issue of entitlement to TDIU is not on appeal. The Board apologizes to the Veteran for this confusion. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The issues regarding reopening of service connection for disabilities of the right and left knee are addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue decided here has been accomplished. 2. For the entire period of this appeal, the Veteran's right ankle disability has been manifested by moderate limitation of ankle motion. CONCLUSION OF LAW The criteria for a disability rating higher than 10 percent for a right ankle disability have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271, 5283, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Although the claimant's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the CAVC extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Analysis of Rating for Right Ankle In a March 1998 rating decision, the RO granted service connection and assigned an initial 10 percent rating for arthritis due to trauma, right tarsus and 1st metatarsal bone, pursuant to Diagnostic Code 5010-5271, effective April 24, 1985. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. The current appeal arises from a claim for increase received at the RO on June 12, 2002. Under Diagnostic Code 5271 (ankle, limited motion of), where motion is limited to a marked degree, a 20 percent rating is available. Where motion is limited to a moderate degree, a 10 percent rating is for application. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71, Plate II, normal range of motion of the ankle is shown as from 0 to 20 degrees of dorsiflexion, and from 0 to 45 degrees of plantar flexion. Under Diagnostic Code 5270 (ankle, ankylosis of), a 40 percent rating is available for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. A 30 percent rating is available for ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. A 20 percent rating is available for ankylosis in plantar flexion at less than 30 degrees. 38 C.F.R. § 4.71a. Also for consideration in light of the specific service-connected disability involving the right tarsus and first metatarsal bone are diagnostic codes pertaining to disabilities of the foot. Under Diagnostic Code 5283 (tarsal, or metatarsal bones, malunion of, or nonunion of), a 30 percent rating is available for severe impairment; a 20 percent rating is available for moderately severe impairment, a 10 percent rating is available for moderate impairment. 38 C.F.R. § 4.71a. Similarly, under Diagnostic Code 5284 (foot injuries, other), a 30 percent rating is available for severe impairment; a 20 percent rating is available for moderately severe impairment, a 10 percent rating is available for moderate impairment. 38 C.F.R. § 4.71a. As the Board found at the time of the January 2007 remand, there was little evidence of record regarding the right ankle and foot disability. The Veteran has reported pain, swelling and limited ankle motion throughout the period of his claim, but has provided few specifics. In response to the January 2007 remand, the Veteran was examined in March 2010. It was noted that he walked with an antalgic gait with the aid of a cane or walker. He was able to walk up to 1/4 mile and was able to stand and walk for about an hour. Strength on dorsiflexion of the ankle was rated at 5 on a scale from 1 to 5. Strength on plantar flexion was rated at 4 out of 5. Muscle tone was normal with no atrophy. On examination, there was no joint deformity, no giving way, no instability, no stiffness, no weakness, no incoordination, no decreased speed of joint motion, no episodes of dislocation or subluxation, no locking episodes, no effusion, and no inflammation. There was no abnormal weight bearing. The examiner described the angulation of the joint as normal. Dorsiflexion at the ankle was measured to 15 degrees and plantar flexion was measured to 35 degrees. There was objective evidence of pain, but no additional limitation of motion beyond the reported figures. There was no ankylosis whatsoever. X-rays of the right ankle were interpreted as normal, but showed a mild hallux valgus in the first metatarsal head. The examiner described the severity of the right foot/ankle disability as mild. He estimated that there would be moderate impairment with sports, mild impairment with chores, shopping, exercise, recreation, and driving, and no impairment with traveling, feeding, bathing, dressing, toileting, and grooming, providing highly probative evidence against this claim. An X-ray of the right foot in August 2011 was also normal showing no significant abnormality or interval change. The Veteran had come to physical therapy seeking a replacement cane. When examined, it was noted that he ambulated to the department without assistive devices or any apparent gait impairment. While he was advised that a cane was not appropriate, he was adamant that he wanted one. Such facts only provide more evidence against this claim. Significant to the Board's finding that there is no more than moderate impairment of the right ankle/foot is that normal dorsiflexion of an ankle is 20 degrees and normal plantar flexion is 45 degrees. Thus, the Veteran's measured dorsiflexion is 75 percent of normal, and his measured plantar flexion is 78 percent of normal. 38 C.F.R. § 4.71, Plate II. The Board finds that this is equivalent to mild limitation of motion. Also significant, strength on dorsiflexion was normal, and strength on plantar flexion was almost normal. Muscle tone was also normal with no atrophy. Thus, despite acknowledged pain, and despite fatigue and weakness that are marginally present, the Veteran is still able to attain a significant range of motion. The Board acknowledges that some if not all of this motion is painful. The Veteran has consistently reported painful ankle motion, and he is competent to report his symptoms. However, the Board finds that the presence of pain does not equate to any particular degree of functional impairment. While pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. It is clear from the record that the Veteran has limited motion and painful motion. Thus the provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for his right ankle disability. See Burton v. Shinseki, 25 Vet. App. 1 (2011); however, this is already assigned. Evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. The results here exclude the possibility that the Veteran's range of ankle motion is limited either by functional loss due to pain or structural limitation to a marked degree. In fact, the results show that, despite the onset of pain, he could still attain a significant degree of motion. Without consideration of the Veteran's pain, the current evaluation could not be justified. Why the Board acknowledges the Veteran's central concern that the pain and other symptoms in his right ankle and foot impair his ability walk and to stand, it is important for Veteran to also understand that, without some problems associated with his right ankle and foot, there would be no basis for the current 10 percent rating. In this regard, it is important to note that the mild limitation of motion discussed above would not meet the requirements of a 10 percent evaluation if that were the only factor considered, let alone a higher evaluation. Without consideration of the problems he has cited, the pain he has with his right ankle and foot, and the effect they have on walking and standing, the current evaluation could not be justified based on range of ankle motion alone. The Board also finds that a higher rating is not warranted on the basis of disability of the right foot under the appropriate diagnostic codes. Those codes essentially require that there be moderately severe impairment of the foot for a rating in excess of 10 percent. In this case, while prior X-rays have shown some abnormalities, the most recent X-rays were normal. Moreover, while the Veteran has noted to have an antalgic gait by the March 2010 examiner, subsequent physical therapy notes indicate that it was his cane that caused the abnormal gait, and he was observed walking normally after he had lost the cane. The Board also finds it significant that there was no giving way, instability, or incoordination reported. There were no episodes of dislocation or subluxation, no locking episodes and no abnormal weight bearing observed. Moreover the examiner's description of mild overall impairment included disability of the foot and ankle together. The estimates of moderate impairment with sports, mild impairment with chores, shopping, exercise, recreation, and driving, and no impairment with traveling, feeding, bathing, dressing, toileting, and grooming also reflect an overall level of severity that is far less than moderately severe. These reports are found to outweigh the Veteran's statements probative value on the key issue of whether the next higher evaluation is met, which the Veteran appears to indicate but the objective medical evidence does not support. The Board also acknowledges the finding of mild hallux valgus; however, the rating schedule provides for a maximum 10 percent rating for that condition. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Thus a higher rating is not available on that basis, and a separate rating is not appropriate in light of the finding of overall mild impairment of ankle and foot. The Board also acknowledges that the Veteran has had significant venous stasis changes in the right ankle; however service connection is not in effect for this condition, and has been specifically denied. The Board does not have jurisdiction to consider such symptomatology in the service-connected rating. Again, the Board acknowledges that the Veteran believes his right foot/ankle disability is severe, as he reported on his VA Form 9; however, his estimate of severity is not explained in terms of the symptomatology and demonstrated functional impairment necessary for a higher rating, and outweighed by significant evidence against such a finding. It is therefore not as persuasive as the clinical evidence showing essentially mild overall impairment. For the reasons discussed above, the Board finds that the weight of the evidence is against a finding of a rating in excess of 10 percent for the right ankle disability. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has described limited motion of the right ankle associated with pain and weakness in the ankle and foot which decrease his ability to stand and to walk. The Board finds that the schedular rating criteria contemplate the Veteran's service-connected right ankle disability. The criteria specifically provide for ratings based on the presence of arthritis and limitation of motion of the ankle, including due to pain, weakness, and other orthopedic factors. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. Such factors are explicitly part of the schedular rating criteria. Because the schedular rating criteria are adequate to rate the disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). Remand Compliance As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's January 2007 remand instructions by sending the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that asked the Veteran to provide any evidence in his possession that pertains to the claims, securing additional VA treatment records relevant to the Veteran's right ankle disability, and by arranging for a VA examination to determine the nature and current severity for his service-connected right ankle disability. The examination included range of motion findings. The examiner identified and described current symptomatology, including functional loss associated with his service-connected right ankle disability. The examiner also addressed whether the Veteran experienced flare-ups. As noted above, the instruction to furnish a Statement of the Case on the issue of TDIU entitlement was in error, and the RO included a memorandum in the claims file describing its findings in this regard. The Board finds that this issue is not being raised by the record, regarding this issue. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In response to the Board's January 2007 remand instruction, the RO sent the Veteran a letter in October 2009 which addressed the evidence necessary to substantiate an increased rating for the right ankle disability. That letter also advised him as to how disability ratings and effective dates were assigned. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The claim was subsequently readjudicated in May 2010. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, records from the Social Security Administration, and the Veteran's written assertions. As noted above, the Veteran was afforded the opportunity to appear at a hearing regarding the rating for his right ankle, but did not appear at the time scheduled. In addition, the Veteran was afforded VA examinations to address the manifestations and severity of his right ankle disability. The Board finds that the Veteran has been afforded an adequate examination on this issue, as the March 2010 examination was performed by a medical professional based on an acknowledged review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. Moreover, the examination addressed the pertinent rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Significantly, neither the appellant nor his or representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of these claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A disability rating in excess of 10 percent for a right ankle disability is denied. REMAND As noted above, there have been two substantive appeals to the Board in this case, dated several years apart. In the first, the issue addressed above, the Veteran did not report for a Board hearing regarding the right ankle rating claim that was scheduled to be conducted at the RO in September 2006. As a result, the Board could fully address that issue. In the August 2010 VA Form 9 submitted to perfect the appeal regarding service connection for disabilities of the right and left knee, the Veteran requested a BVA hearing at a local VA office for these new claims. The Board notes that these issues were not on appeal at the time of the Veteran's failure to report for a scheduled hearing in September 2006 (for the issue fully addressed above). The Veteran's request for a hearing regarding his service connection claims has not been withdrawn. In this regard, it is important for the Veteran to understand that if he cannot attend the hearing he should inform VA immediately as such an act seriously delays the full adjudication of the Veteran's remaining claims. Since such hearings are scheduled by the RO, the case is REMANDED for the following action: A Travel Board hearing addressing the issues of service connection for disabilities of the right and left knee should be scheduled in accordance with the docket number of this appeal. The Veteran should be notified of the time and place to report for the scheduled hearing. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2011). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs