Citation Nr: 1313772 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-15 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for cervical fusion and cervical myelopathy, to include as secondary to service-connected disability. 2. Entitlement to an increased rating for left ankle sprain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and RT ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from December 1982 to February 1983 and from March 1986 to July 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida on behalf of the RO in Atlanta (Decatur), Georgia. In July 2012 the Veteran presented testimony before the undersigned Veterans Law Judge at the RO in Atlanta, Georgia; a transcript of that hearing is of record. Evidence pertinent to the matters on appeal was received by VA in August 2012. The Veteran has waived initial RO consideration of this evidence. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran has not asserted that the disability on appeal has caused him to be unemployable, and the issue of entitlement to TDIU will not be addressed. FINDINGS OF FACT 1. A VA physician has linked the Veteran's cervical fusion and cervical myelopathy to service-connected disability. 2. Throughout the rating period on appeal, the Veteran's left ankle disability has been manifested by complaints of pain and functional impairment comparable to mild limitation of motion. CONCLUSIONS OF LAW 1. The Veteran's cervical fusion and cervical myelopathy are proximately due to service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2012). 2. The criteria for a disability evaluation in excess of 10 percent for left ankle sprain have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies in the instant case. Duty to Notify By correspondence dated in February 2007 and January 2009 the Veteran was informed of the evidence and information necessary to substantiate the left ankle increased rating claim, the information required of the Veteran to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. The Veteran has been informed of the need for evidence demonstrating an increase in the severity of the left ankle disability and the effect that the service-connected disability has on employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). In February 2007 the Veteran received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the left ankle claim such that the essential fairness of the adjudication is not affected. Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. As for Social Security Administration (SSA) records, the Board notes that such records, to the extent that they may even exist, are not necessary for the Veteran's service connection claim, as that claim is being granted. As for the increased rating claim, SSA records would be of no value as the record clearly shows that the Veteran has no range of motion of the left ankle, and the current level of left ankle range of motion and functional impairment are not in dispute. The Veteran has undergone adequate VA examinations that addressed the matters presented by the left ankle increased rating issue. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The aforementioned examinations were thorough, and well reasoned, and took into account the Veteran's personal history/complaints. The Board therefore finds that the examinations were adequate for rating purposes. During the July 2012 Board hearing, to assist the Veteran, the undersigned specifically informed the Veteran of the pertinent criteria for rating ankle disabilities and also asked the Veteran questions concerning left ankle medical history. The undersigned also informed the Veteran that the record would be held open for 30 days in an effort to give the Veteran additional time to submit evidence in support of his appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the left ankle claim. In light of the favorable decision to grant the Veteran's claim of service connection for cervical spine disability, any deficiency as to VA's duties to notify and assist, as to that issue, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot. I. Cervical spine disability Applicable Laws-Service connection Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran has been granted service connection for left ankle disability, effective September 1988. The Veteran asserts that he has cervical spine disability that has resulted from numerous falls caused by instability of his service-connected left ankle disability. In a March 1988 letter the Veteran's private physician noted that the Veteran's left ankle was weak and "frequently gives out on him." An October 1988 private treatment record noted that the Veteran had slipped and twisted his left ankle at work. A May 1989 private record noted that the Veteran had fallen off the stairs, and had pain and swelling in his left ankle. An October 1993 record noted that in January 1990 the Veteran had stated that he fell and injured his right ankle after his "left ankle gave out." In June 1989 and October 1989 the Veteran indicated that his left ankle had given out on him. A June 2004 private medical record noted that the Veteran had been seen following a one week history of decreased sensation from the nipple line distally. The Veteran underwent a cervical diskectomy with a preoperative and postoperative diagnosis of cervical myelopathy secondary to herniated disc with acquired stenosis at C5-6 and C6-7. An August 2006 VA record noted that the Veteran had sustained a fall the day prior, resulting in an injury to his knees. A November 2006 private record reveals that the Veteran underwent anterior cervical corpectomy and fusion. Following a review of the record and a contemporaneous physical examination, a February 2009 VA examiner stated as follows: It is this examiner's opinion that as a result of continuous instability in the left ankle this resulted in several falls through the period from 1986 to current resulting in cervical degeneration problems and ultimately leading to his cervical fusion and cervical myelopathy. The February 2009 VA examiner stated that it was most likely that the Veteran's cervical myelopathy was directly related to the Veteran's service-connected left ankle disability. At his June 2012 Board hearing the Veteran indicated that he first began to have cervical spine problems in 2004. He stated that he was a C6 quadriplegic and noted that he had no leg movement and no feeling from the neck down. Based on the opinion from the February 2009 VA physician, the Board finds that the evidence of record establishes that the Veteran's cervical fusion and cervical myelopathy are related to his service-connected left ankle disability. The Board finds the February 2009 VA physician's opinion to be highly probative in this case. The February 2009 VA examiner noted that the claims file had been "extensively" reviewed, and then provided specific details concerning the Veteran's particular case. A rationale for the opinion was provided. Significantly, the February 2009 VA examiner's opinion is uncontradicted and is essentially supported by an August 2012 letter from the Veteran's private physician who has treated the Veteran since 2003. In short, the February 2009 VA examiner's opinion is fully articulated with clear conclusions based on an accurate factual basis and supported by sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In conclusion, service connection for cervical fusion and cervical myelopathy is warranted. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Left ankle disability Legal Criteria Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Staged ratings are appropriate for increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the 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 the claim. In a March 1989 rating decision the RO granted service connection for chronic left ankle sprain and assigned a 10 percent disability rating, effective September 1988. The 10 percent rating has remained in effect since that time. The Veteran's claim for an increased rating for service-connected left ankle disability was received on November 6, 2006. The Veteran's left ankle disability is rated under Diagnostic Codes 5299-5271. Under Diagnostic Code 5271, moderate limitation of motion of the ankle warrants a 10 percent disability rating, and marked limitation of motion of the ankle warrants a 20 percent disability rating. The average normal range of motion of the ankle is from zero to 20 degrees of dorsiflexion, and from zero to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. At his June 2012 Board hearing the Veteran indicated that he could feel pain inside, but not outside, his left ankle. The Veteran stated that he had become paralyzed in November 2006. He indicated that he had had left ankle range of motion prior to his cervical spine surgery. The Veteran indicated that he had left ankle arthroscopic surgery in February 1989 and was taking Oxycodone to mange his ankle pain. The Veteran stated that he could not move his legs at all. At a March 2007 VA joints examination the Veteran complained of pain of 4/10 in his ankles with stiffness and occasional swelling. Range of motion of the left ankle revealed 0 to 20 degrees dorsiflexion (active and passive) with pain, and 0 to 45 degrees plantar flexion (active and passive) with pain throughout. Repetitive testing was unchanged and valgus was normal. The diagnosis was chronic left ankle sprain. At a February 2009 VA examination it was noted that the Veteran had no sensation in his lower extremities due to his cervical spine disability, although he did complain of pain. It was further noted that the Veteran currently had no use of his lower extremities. Physical examination revealed left ankle passive range of motion of 0 to 20 degrees dorsiflexion and 0 to 45 degrees plantar flexion, all with no complaints of pain. The examiner stated that the Veteran was unable to initiate any active movement of ankle flexion or extension. The diagnosis was left ankle sprain. The evidence of record does not show limitation of motion or function of the left ankle which more nearly approximates a degree characterized as marked so as to warrant a 20 percent rating under Diagnostic Code 5271. Range of motion testing has shown that the left ankle has, at most, mild limitation of motion, and no other manifestations that would warrant a higher rating are shown. As essentially noted by the February 2009 VA examination report, the Veteran's inability to self-initiate active motion of the left ankle is due to reasons other than those for which service-connection was originally granted. While under Diagnostic Code 5262 for malunion of the tibia and fibula, a 20 percent rating is warranted for moderate knee or ankle disability, no such malunion has been shown, and a higher rating under Diagnostic Code 5262 is not for application. The Board has considered additional limitation of function due to factors such as pain, weakness, incoordination and fatigability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board observes that the March 2007 VA examiner indicated that left ankle range of motion testing was unchanged. Even considering additional functional limitation due to left ankle pain, the competent findings do not indicate a disability picture comparable to having marked limitation of motion as is necessary in order to achieve the next-higher 20 percent evaluation under Diagnostic Code 5271. The Veteran is competent to give evidence about what he observes or experiences concerning his left ankle. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his left ankle disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's left ankle has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent findings in conjunction with the evaluation. The medical findings directly address the criteria under which ankle disabilities are evaluated. As such, the Board finds these records to be the most probative evidence with regard to whether a rating in excess of 10 percent is warranted. In conclusion, the evidence of record does not support a rating in excess of 10 percent for left ankle disability for any portion of the rating period on appeal. the Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, 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 or frequent periods of hospitalization. Id. At 116. If additional factors are found, 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 to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's left ankle disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's left ankle disability has been evaluated under the applicable Diagnostic Codes that have specifically contemplated the level of occupational and social impairment caused by service-connected left ankle disability. The Veteran's symptoms such as pain and left ankle range of motion are specifically enumerated under Diagnostic Code 5271. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Service connection for left and right lower extremity radiculopathy, secondary to service-connected disability, is granted. A rating in excess of 10 percent for chronic left ankle sprain is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs