Citation Nr: 1311203 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 07-28 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a right ankle sprain since September 13, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1988 to May 1992. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was previously before the Board in October 2011, at which time it was remanded in order to obtain VA treatment records since 2008, and provide the Veteran a VA examination for his right ankle. VA treatment records since 2008 were associated with the claims folder in October 2011, and the Veteran was afforded a VA examination in November 2011. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required where there was substantial compliance with Board's remand instructions). FINDING OF FACT Since September 13, 2008, the Veteran's right ankle sprain has been productive of a marked limitation of motion, manifested by such symptoms as limited dorsiflexion and plantar flexion, pain, swelling, and rolling of the ankle. CONCLUSION OF LAW Since September 13, 2008, the criteria for a 20 percent rating for residuals of a right ankle sprain, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in pre-rating correspondence dated April 2006 of the information and evidence needed to substantiate and complete his claim, to include information regarding how disability evaluations and effective dates are assigned. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, providing VA examinations. The November 2011 VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal, and is adequate for purposes of this appeal. There is no evidence that any VA error in notifying or assisting the Appellant reasonably affects the fairness of this adjudication. Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication Applicable Laws and Regulations In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A musculoskeletal disability is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, a 10 percent rating is warranted for a moderate limitation of ankle motion, and a 20 percent rating is assigned for a marked limitation. In order to warrant the assignment of a 30 percent disability evaluation, there would have to be ankle ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270. For VA purposes, the normal range of ankle motion is dorsiflexion 0 to 20 degrees and plantar flexion 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. The Board observes that "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Applicable Facts The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In October 2011 the Board denied entitlement to a rating in excess of 10 percent for residuals of a right ankle sprain from February 17, 2006, to September 12, 2008. The issue of entitlement to a rating in excess of 10 percent for right ankle sprain since September 13, 2008, was remanded. Subsequent to the Board's October 2011 remand, the Veteran's VA treatment records since 2008 were obtained and associated with the claims folder. These records show that the Veteran continued to report experiencing right ankle pain. The Veteran was afforded a November 2011 VA examination, wherein he reported that he experienced pain, for which he took various over-the-counter medications, of the right ankle. He also reported that he experienced swelling of his right ankle, less flexibility and less mobility, and that his right ankle easily rolled. He described have flare ups if the ankle rolled. On those occasions the appellant reported that the ankle would swell up to baseball size and that the swelling would persist for two to three weeks. Physical examination revealed right ankle plantar flexion was to 25 degrees, with pain, and even following repetitive motion. Right ankle dorsiflexion (extension) was to 10 degrees, with pain, and following repetitive motion. There was no additional loss of motion with repetitive use. Muscle strength was 5/5, and both anterior drawer and talar tilt tests were negative. The Veteran did not require assistive devices. The examiner observed that the Veteran worked in the communications field, but due to his ankle disorder he was no longer able to climb towers or ladders, or able to carry more than 75 pounds. The inability to climb towers reportedly impacted the appellant's pay. Legal Analysis Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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, 469 (1994). The Board has carefully considered the Veteran's pleadings regarding his right ankle symptoms, which include complaints that pain and rolling of his ankle affects his functioning. In this case, the Veteran is competent and credible to report symptoms because this requires only personal knowledge as it comes to him through his senses. The Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is certainly competent to report his experiences with pain, tenderness and his ankle rolling. He would also be competent to describe whether he does not have motion (ankylosis). In fact, his actual reports are relatively consistent with the objective evidence. In essence, almost full right ankle motion was demonstrated during the relevant time period, with some pain elicited. The Veteran's own statements establish that he has retained functional use. The evidence demonstrates that residuals of a right ankle sprain are limited to 10 degrees dorsiflexion, and to 25 degrees plantar flexion. The combined impact of these limitations has increased since the Board's October 2011 decision. Functional limitations included pain and rolling of the ankle. Thus, in an effort to properly rate this Veteran, the Board resolves reasonable doubt in his favor and finds that he is entitled to a 20 percent rating for marked symptoms of his right ankle disability effective from November 28, 2011, the date of the VA examination showing increased pathology. The Board has also considered the applicability of other diagnostic codes; however, the facts and circumstances of this case do not permit the application of these other codes or, if they may be applied, they are of no benefit to the Veteran. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). Regarding the DeLuca factors, the Board notes that the Veteran reported instability of the right ankle, but instability was not found on examination. The Veteran complained of pain and swelling throughout the appeal period; however, these limitations were fully considered in the range of motion exercises conducted in the examinations, and have been considered in the Board's review of the diagnostic codes for limitation of motion. Thus, the Veteran's complaints are fully contemplated in the assigned 20 percent rating for limited motion of the right ankle. DeLuca. As such, in light of the Veteran's credible assertions and the medical evidence of record, the Board concludes that the criteria for a higher disability evaluation for the right ankle disability have been met. The Board has considered the application of staged rating and finds that they are not appropriate here. In conclusion, the Board finds the evidence supports a rating of 20 percent, and no higher, for the Veteran's right ankle disability, based on limited motion. In reaching this conclusion, the benefit-of-the-doubt doctrine has been appropriately applied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). With respect to the Veteran's entitlement to a rating in excess of 20 percent, the law requires that the ankle be ankylosed in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. As the November 2011 examination did not show any evidence of ankylosis of the right ankle in any plane of movement, entitlement to a 30 percent rating is not in order. 38 C.F.R. § 4.71a. Extraschedular Consideration The symptoms presented by the Veteran's right ankle disability, to include pain, rolling of the ankle, and swelling are fully contemplated by the rating schedule. Thus, the Board finds no evidence warranting entitlement to referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Further, although the Board has considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2011), the minimum requirement for a total disability rating has not been met. Here, the record does not suggest, and the Veteran does not contend that he is unable to maintain or sustain substantially gainful employment due to service-connected disabilities alone. 38 C.F.R. § 4.16 (2012). ORDER Entitlement to a rating of 20 percent, but no higher, for residuals of a right ankle sprain since September 13, 2008, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs