Citation Nr: 1310477 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 06-26 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative joint disease, prior to November 2, 2012. 2. Entitlement to a disability rating in excess of 20 percent for residuals of right ankle disability after November 2, 2012, to include entitlement to a temporary total disability rating. 3. Entitlement to a disability rating in excess of 10 percent for residuals of Bennett's fracture of the left thumb with osteoarthritis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2005 and July 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded the case for additional development in November 2010. In April 2012, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain records from the Social Security Administration (SSA) and to afford the Veteran VA medical examinations of his thumb and ankle disabilities. The action specified in the April 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In January 2013, the Veteran's representative submitted additional medical evidence in support of the claims and waived RO review. The issue of entitlement to a disability rating in excess of 20 percent for residuals of a right ankle disability after November 2, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to November 2, 2012, the Veteran's residuals of a right ankle injury with degenerative joint disease was manifested by marked limitation of motion, but not ankylosis. 2. The Veteran's left thumb disability does not cause limitation of motion resulting in a gap of 1 inch (2.5 cm) or more between the thumb pad and fingers, with the thumb attempting to oppose the fingers; however, the Veteran does have painful motion of the left thumb and decreased strength and dexterity in the left hand secondary to his disability. CONCLUSIONS OF LAW 1. Prior to November 2, 2012, the criteria for entitlement to a disability rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative joint disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.51, 4.71a, Diagnostic Codes 5010, 5271 (2012). 2. The criteria for entitlement to a disability rating in excess of 10 percent for residuals of Bennett's fracture of the left thumb with osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1-4 .3, 4.7, 4.10, 4.40, 4.59, 4.71a, Diagnostic Code 5228 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Right Ankle The Veteran is seeking entitlement to a disability rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative joint disease. The Veteran was originally granted entitlement to a right foot ganglion in a March 1976 rating decision, effective August 1975, and assigned an initial non-compensable (0 percent) disability rating. This condition was rated under Diagnostic Code 7819 as a benign skin neoplasm. In July 2005, the Veteran filed his current claim. An October 2005 rating decision continued the non-compensable disability rating. However, a July 2006 rating decision re-characterized the Veteran's service connected disability as residuals of a right ankle injury to include degenerative joint disease. 38 C.F.R. § 4.13. It was noted that a right foot ganglion was initially the only identified residual of the Veteran's in-service ankle sprains but since then medical evidence established that degenerative joint disease was directly related to the in-service ankle strains. The Veteran was assigned a 20 percent disability rating, under Diagnostic Code 5010-5271 pertaining to traumatic arthritis and limited motion of the ankle, effective July 26, 2005, the date of the Veteran's increased rating claim. The Veteran's right ankle disability currently is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27 (2012). The first four digits, 5010 in this case, is the diagnostic code for the disability. Id. The second four digits after the hyphen, 5271 in this case, is the diagnostic code used to rate the residuals of that disability. Id. According to Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When, however, the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings will not be combined with ratings based on limitation of motion. Id. Under 38 C.F.R. § 4.45(f), for the purpose of rating disability from arthritis, the only major joints are the shoulder, elbow, wrist, hip, knee and ankle. Additionally groups of multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities; the interphalangeal, metatarsal and tarsal joints of the lower extremities; the cervical vertebrae; the dorsal vertebrae; and the lumbar vertebrae, are considered groups of minor joints, ratable on parity with major joints. 38 C.F.R. § 4.45(f) (2012). Diagnostic Code 5271 provides assignment of a 10 percent rating for moderate limited motion of the ankle, and a 20 percent rating for marked limited motion. 38 C.F.R. § 4.71a (2012). This specific Diagnostic Code does not provide for a rating in excess of 20 percent. The words "moderate" and "marked," as used in the various Diagnostic Codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2012). Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2012). The Veteran was afforded a series of VA examinations throughout the period on appeal. The first was in September 2005. At that time, the Veteran described right ankle pain which worsens with prolonged standing or walking. He complained that he was unable to work as a carpenter due to severe right foot pain with standing or walking. The Veteran described subjective symptoms including pain, instability, tenderness, limited motion, abnormal motion, redness, stiffness, and heat located around the tarsal bone area. On physical examination, there was no evidence of abnormal motion, crepitus, edema, effusion, fatigability of the foot, instability, mass, muscle atrophy, redness, spasm, heat, or weakness. There was evidence of severe pain over the tarsal bones with motion, as well as severe tenderness to palpation over the tarsal bones. The Veteran's gait was normal and there was no evidence of abnormal weight bearing. There was no deformity or structural abnormality of the foot. The Veteran had plantar flexion of the ankle from 0 to 20 degrees with pain throughout the range of motion. There was no additional loss of motion following repetition. He reported that he could stand for 15-30 minutes and walk 1/4 mile. It was concluded he could not perform his duties as a carpenter due to severe right foot pain while standing or walking and had increased absenteeism. An x-ray of the right foot showed degenerative changes of the right first metatarsal phalangeal joint with plantar spur. The Veteran was next afforded a VA examination in May 2006. At that time, the Veteran described an injury to his right ankle in service with progressively worsening pain and intermittent swelling. The Veteran described current symptoms of pain, weakness, stiffness, swelling, occasional increased heat, a feeling of giving way, easy fatigability, and lack of endurance. He treated his condition with rest, elevation, and methadone. He also described daily flare-ups of severe pain caused by prolonged standing or walking. The Veteran reported that he was retired and had not worked since 1987. He had difficulty performing activities of daily living that require standing or walking. On examination, the Veteran had an antalgic gait and complained of pain when bearing weight on the right ankle. The Veteran was unable to stand on his heels or toes. There was considerable swelling of the lateral malleolus, but no increased heat. The Veteran's feet revealed grade I pes planus without change in the angle of the anterior feet or of the angle of the foot with the Achilles tendon. The right ankle plantar flexed to 63 degrees and lacked 34 degrees of reaching the 0 position in dorsiflexion. Eversion of the right foot was 5 degrees and inversion was 15 degrees, both with lateral ankle pain. The Veteran complained of pain with motion and with repetitive motion. The examiner estimated that the Veteran's strength, flexion, and extension of the right ankle were 50 percent less than on the left, and that strength is further decreased with repetitive motion caused by pain and weakness. However, the range of motion was not changed following repetitive testing. The examiner diagnosed the Veteran with "status right ankle injury in 1974 while on active duty with a diagnosis of ankle sprain and ganglion about the anterolateral aspect of the right ankle." The examiner noted that although the Veteran's right ankle mass has disappeared, the Veteran's right ankle pain and instability had progressively worsened. He had laxity of the lateral ankle ligaments allowing for unusual and additional inversion. An x-ray of the right ankle showed mild degenerative joint disease. It was noted that it was at least as likely as not that the Veteran's chronic ligamentous strain and laxity were secondary to his military service ankle injury. It was noted that the primary functional impact of repetitive motion or during flare-ups is pain and weakness. In May 2006, the Veteran underwent another VA examination and it was concluded that the Veteran's residuals of an in-service injury consisted of arthritic changes of the ankle joint. It was commented that any arthritic changes in the toe (which were located at the medial aspect) were irrelevant as the Veteran's symptoms stemmed from lateral and anterolateral aspects. The Veteran was afforded another VA examination of his right ankle in February 2008. At that time, he described a history of recurrent right ankle sprains. He complained of subjective symptoms including pain, deformity, giving way, instability, stiffness, and weakness. He reported difficulty with prolonged standing and walking and noted that he sometimes uses a cane or crutch for assistance ambulating. He denied episodes of dislocation, subluxation, or locking. He described flare-ups that occurred on at least a weekly basis during which he is unable to walk. The Veteran was not employed. His ankle disability interfered with some of his activities of daily living such as shopping and chores, but did not affect his ability to feed or groom himself. On examination, there was no evidence of abnormal weight-bearing. The Veteran had full passive range of motion of the right ankle, but had pain throughout the entire range of motion. There was no additional loss of motion following repetitive testing. There was no ankylosis. There was tenderness and painful motion, but no objective evidence of instability or tendon abnormality. A May 2006 x-ray showed mild degenerative changes of the ankle joint. The Veteran's most recent VA examination was in May 2012. The Veteran continued to complain of recurrent right ankle sprains, as well as right ankle pain, instability, and stiffness. He reported using a cane and brace for support. The Veteran could plantar flex his right ankle from 0 to 35 degrees, with pain at 20 degrees. He could dorsiflex his right ankle from 0 to 20 degrees with pain at 20 degrees. He had no additional limitation of motion following repetitive testing. He had full strength. The Veteran had tenderness to palpation, as well as demonstrated laxity of the right ankle to inversion/eversion stress. There was no evidence of ankylosis. The Veteran was diagnosed with degenerative arthritis of the right ankle which the examiner stated would preclude physically demanding work, as well as work that requires prolonged periods of standing. Also of record are VA treatment records and records from the Social Security Administration (SSA); however, none of these records showed that the Veteran has ankylosis of the right ankle or showed a disability picture different from that presented in detail in the Veteran's numerous VA examinations. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's right ankle disability is appropriately evaluated as 20 percent disabling, the maximum evaluation available under Diagnostic Code 5271 for limitation of motion of the ankle, as the competent evidence of record reflects that such disability is manifested by pain, instability, and marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012); see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (implicitly holding that once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain). The Board has considered whether there are other appropriate diagnostic codes applicable to the Veteran's disability that would support the assignment of a rating higher than 20 percent. In this regard, it is again pointed out that the Veteran's service-connected disability has been recharacterized from right foot ganglion to degenerative joint disease of the ankle. This recharacterization was based on medical evidence establishing a connection between his in-service ankle sprains and degenerative joint disease of the ankle. See May 2006 VA examination reports. As discussed, the most appropriate diagnostics codes are that of 5010 and 5271 which squarely address diagnosed degenerative joint disease and limitation of motion of the ankle, respectively. To the extent, that Diagnostic Code 7819, benign skin neoplasms, is still applicable, it is noted that during a May 2006 VA compensation examination, the Veteran noted that the ganglion mass on the right anterolateral aspect of his right ankle had disappeared. There is no other evidence on file suggesting that his ganglion is productive of compensable symptoms. The Veteran's right ankle disability has not been productive of ankylosis of the right ankle; thus, Diagnostic Code 5270 does not apply. 38 C.F.R. § 4.71a (2012). This is the only diagnostic code for rating disabilities of the ankle under which a disability rating in excess of 20 percent can be assigned. The Veteran's representative has argued that the Veteran should be rated under Diagnostic Code 5284, which rates other injuries of the foot that are not rated by Diagnostic Codes 5276-5283. Under Diagnostic Code 5284, a 10 percent disability rating is assigned for moderate foot injuries, a 20 percent disability rating is assigned for moderately severe foot injuries, and a 30 percent disability rating is assigned for severe foot injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). The Veteran's representative has suggested that because the Veteran's complaints of pain and difficulty standing and walking encompass the feet as well as the ankle, the Veteran should be rated under Diagnostic Code 5284. However, the Board rejects this argument. The Veteran is service-connected for residuals of an ankle disability with degenerative joint disease. He can only be compensated for his service-connected ankle disability, which is rated under a diagnostic code specific to that particular joint. During a May 2006 VA examination, the examiner specifically addressed foot symptomatology to the extent that he pointed out that the Veteran had arthritis of the great toe, but discounted the significance of the findings as the Veteran's symptoms (e.g., pain and limitation of motion) stemmed from a different anatomical location, the ankle. As noted, there is no evidence suggesting symptoms stemming from his ganglion of the right foot. Furthermore, even assuming for argument purposes that the Board were to rate the Veteran under Diagnostic Code 5284, the Veteran finds that the Veteran's disability is more appropriately characterized as moderately severe (rated as 20 percent disabling), rather than severe (rated as 30 percent disabling). While there is evidence that the Veteran experiences painful and limited motion due to his disability, as well as some instability, his most recent VA examinations reflect that he still retains considerable range of motion in his right ankle and his degenerative joint disease has been described as "mild" in nature. In summary, based on all the evidence of record, the Board finds that prior to November 2, 2012, a disability evaluation in excess of 20 percent for residuals of a right ankle injury, to include degenerative joint disease is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). In November 2012, the Veteran fractured his right ankle in an accident and underwent a right ankle arthroscopy. The issue of an appropriate disability evaluation after November 2, 2012 is remanded for additional development and is addressed in the Remand portion of this opinion below. Left Thumb The Veteran is also seeking a higher disability rating for residuals of Bennett's fracture of the left thumb, currently assigned a 10 percent disability rating. The Veteran's left thumb disability currently is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5228. As the Board noted above, hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27 (2012). The first four digits, 5010 in this case, is the diagnostic code for the disability. Id. The second four digits after the hyphen, 5228 in this case, is the diagnostic code used to rate the residuals of that disability. Id. According to Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When, however, the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings will not be combined with ratings based on limitation of motion. . Under 38 C.F.R. § 4.45(f), for the purpose of rating disability from arthritis, the only major joints are the shoulder, elbow, wrist, hip, knee and ankle. Additionally groups of multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities; the interphalangeal, metatarsal and tarsal joints of the lower extremities; the cervical vertebrae; the dorsal vertebrae; and the lumbar vertebrae, are considered groups of minor joints, ratable on parity with major joints. 38 C.F.R. § 4.45(f) (2012). Diagnostic Code 5228 applies to limitation of motion of the thumb and assigns a 10 percent rating for a gap of 1 to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228 (2012). Also applicable in this case is Diagnostic Code 5224, which provides a 10 percent disability rating is assigned for favorable ankylosis of the thumb and a 20 percent disability rating for unfavorable ankylosis of the thumb. 38 C.F.R. § 4.71a, Diagnostic Code 5224 (2012). There is no differentiation between the ratings assigned for the major and minor hands under Diagnostic Codes 5224 or 5228. The Veteran was afforded a VA examination of his left thumb in September 2005. At that time, he complained of pain, limited motion, and swelling. There was no gap between the thumb pad and tips of the fingers on attempted opposition of the thumb to the fingers. There was no gap between the fingers and the proximal transverse crease of the hand on maximal flexion of the fingers. The Veteran had normal strength and dexterity on pushing, pulling, twisting, probing, touching, and expression. His grasping ability was moderately impaired and his writing ability was mildly impaired. There was pain with any range of motion, but he had full range of motion of the thumb. A May 2005 x-ray showed mild osteoarthritic changes in the first carpo-metacarpal joint. In his July 2006 substantive appeal, the Veteran complained that he is unable to grip objects because of his left thumb disability. In February 2008, he was afforded another VA examination. He described constant throbbing in his thumb, as well as swelling. He complained of difficulty holding or gripping objects and diminished fine motor skills. He also complained of trouble using a hand tools and typing. He was taking methadone for the pain. He was not employed, but complained that his disabilities interfered with activities of daily living such as chores and shopping. However, he was able to feed himself and perform self care activities such as dressing and grooming without impairment. On examination, there was evidence of abnormal, painful, limited motion of the metacarpal phalangeal joint of the left thumb. Active range of motion of the MCP joint of the left thumb was from 0 to 40 degrees and passive range of motion was from 0 to 42 degrees. Active range of motion of the IP joint of the left thumb was from 0 to 65 degrees and passive range of motion was from 0 to 68 degrees. There was pain throughout the entire range of motion, but no additional loss of motion with repetition. Range of motion of the left hand was otherwise normal. There was no ankylosis. There was no gap between the thumb pad and the tips of the fingers on attempted opposition of thumb to fingers. There was no gap between the fingers and the proximal transverse crease of the hand on maximal flexion of the fingers. There was decreased strength and dexterity of the left hand compared to the right. In May 2012, the Veteran was afforded his most recent VA examination. At that time, the Veteran described pain at the base of his thumb that radiates into the thumb and hand and is worsened by physical activity and cold, rainy weather. He also reported occasional swelling. He wore a hand/wrist brace which helped significantly. On examination, there was no gap between the thumb pad and the fingers tips when opposing the thumb to the fingers. There was no gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips. These findings were true even following repetitive testing. The Veteran had painful movement of the left thumb. The joint was tender to palpation. Grip strength was normal. There was no ankylosis. A January 2011 x-ray showed degenerative changes at the base of the Veteran's left thumb metacarpal. The examiner stated that the Veteran's left thumb disability would preclude physically demand work and would also limit sedentary work that requires typing and the use of his left thumb. The Board has also reviewed the Veteran's VA outpatient treatment records. While they note complaints of bilateral hand pain, there is no evidence that the Veteran has compensable limitation of motion of the thumb or ankylosis. SSA records are negative for any relevant evidence. Based on all the above evidence, the Board finds that entitlement to a disability rating in excess of 10 percent for residuals of Bennett's fracture of the left thumb with osteoarthritis is not warranted for any period on appeal. The Veteran's range of motion of the left thumb is not limited to a gap of more than 2 inches (5.1 cm) between the thumb pad and finger tips with the thumb attempting to oppose the fingers. Instead, the findings documented in the VA examinations of record show that there is no gap between the Veteran's thumb and finger tips when he attempts to oppose the thumb and fingers, which would not even warrant a compensable rating under Diagnostic Code 5228. Additionally, there is no evidence of record that the Veteran suffers from ankylosis of the left thumb. Therefore, a higher disability rating cannot be assigned under Diagnostic Code 5224. While the record reflects that the Veteran has painful motion of the left thumb, as well as some diminished grip strength and dexterity in the left hand and osteoarthritis in the left thumb, the Board finds that the Veteran's symptoms are adequately compensated by his current 10 percent disability rating absent evidence that his pain causes sufficient function impairment to affect the Veteran's range of motion of the thumb. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain, by itself, throughout a joint's range of motion does not constitute a "functional loss" entitling a claimant to a higher rating under VA regulations that evaluate disability based upon range-of-motion loss in the musculoskeletal system). For all the above reasons, a disability rating in excess of 10 percent for Bennett's fracture of the left thumb with osteoarthritis is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). Extraschedular Finally, the Board has also considered whether the Veteran's disabilities warrant referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. The Veteran's reported difficulties of pain, weakness, swelling, and limitation of motion are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. He merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorders that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is not required. See Thun, supra. Lastly, the Board notes that the Veteran's claim for a total disability rating based on individual unemployability was denied in a February 2007 RO decision, and the Veteran did not appeal. Since then, the Veteran has not raised the issue and the evidence does not otherwise indicate an informal claim for TDIU based on impairment from service-connected disabilities. Accordingly, the Board does not have jurisdiction over this issue. The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board notes that in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Court) clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in August 2005 and March 2006. These letters informed the Veteran of what evidence was required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. However, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in March 2006. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her or his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a statement of the case issued in May 2006 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and records from the Social Security Administration (SSA). The appellant was afforded VA medical examinations in September 2005, May 2006, February 2008, and May 2012. These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disabilities as well as the functional impairments resulting therefrom. The examination reports are adequate for rating purposes. See 38 C.F.R. § 4.2. Significantly, neither the appellant nor his 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 the claim. 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 Entitlement to a disability rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative joint disease, prior to November 2, 2012 is denied. Entitlement to a disability rating in excess of 10 percent for residuals of Bennett's fracture of the left thumb with osteoarthritis is denied. REMAND As noted above, the Veteran is seeking an increased disability rating for his service connected right ankle disability. VA treatment records show that on November 2, 2012, the Veteran fell off a ladder, causing a right lateral talar dome fracture and a small avulsion fracture of the medial malleolus. On November 16, 2012, he underwent a right ankle arthroscopy with removal of fracture fragments. In a December 2012 statement, the Veteran reported that he was still under orthopedic care following his surgery and was unable to walk or work. The Veteran's November 2, 2012 injury and subsequent surgery raises the possibility that his service connected right ankle disability has been permanently worsened. Accordingly, a remand is required to afford the Veteran a new VA examination to determine the current severity of the Veteran's disability, status post right arthroscopy. On remand, the RO should consider not only whether the Veteran should be afforded a higher schedular rating for his service connected right ankle disability, but also whether the Veteran meets the criteria for a temporary total disability rating due to convalescence under 38 C.F.R. § 4.30. Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's most recent VA treatment records with his claims file. 2. Once this is done, the RO should schedule the Veteran for a VA examination of his service connected right ankle disability. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. The RO should adjudicate the issue of entitlement to a disability rating in excess of 20 percent for residuals of a right ankle injury, to include degenerative arthritis, after November 2, 2012. This should include consideration of whether the Veteran meets the criteria for entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 following his November 2012 right ankle arthroscopy. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs