Citation Nr: 1314577 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 09-05 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES Entitlement to an increased rating for right ankle sprain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from July 1993 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In October 2012, the Board remanded the Veteran's claim for an increased compensable rating for right ankle sprain. By rating action in April 2013, the RO granted the Veteran a 10 percent rating for his service-connected right ankle sprain, effective from September 29, 2010, the date of receipt of the Veteran's claim for an increased rating. In January 2013 the Veteran submitted additional medical evidence along with a waiver of RO review of this evidence. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that these documents have either already been considered by the RO, or are irrelevant to the issue on appeal. The Board also notes that the Veteran has had a total disability rating based on individual unemployability (TDIU) in effect since prior to receipt of the Veteran's claim for an increased rating for her right ankle disability. Consequently, there is no implicit claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). FINDING OF FACT The Veteran's right ankle sprain disability is manifested by no more than moderate limitation of motion. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right ankle sprain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In October 2010, prior to the May 2011 rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the claim, and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the Veteran's VA treatment records, and non-VA treatment records have been obtained. The Veteran has been provided VA medical examinations. She has provided testimony at a Board hearing. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and she has done so. Neither the Veteran nor her representative has indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. With respect to the August 2012 Travel Board hearing, the United States Court of Appeals for Veterans Claims (Court) held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2012 hearing, the Veterans Law Judge enumerated the issue on appeal. Information was obtained regarding the history of the Veteran's right ankle disability, her current symptoms, and the effect the Veteran's right ankle disability has on her activities. The Veteran has not asserted that there was any prejudice with regard to the conduct of the hearing. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted or sought. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2). In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. II. Law and Regulations In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. The Veteran's right ankle sprain disability is rated as 10 percent disabling under Diagnostic Code 5271. Code 5271 provides for a 10 percent rating for ankle limited motion that is moderate and a 20 percent rating for ankle limited motion that is marked. The Board notes that the terms "moderate" and "marked" in the criteria are not defined in the rating schedule. Therefore, rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6. With respect to the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5271, normal dorsiflexion of the ankle is from 0 degrees to 20 degrees. Normal plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran has appealed the denial of a rating higher than 10 percent for her right ankle disability. The current ratings contemplate periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. The 10 percent rating also contemplates the functional equivalent of moderate limitation of motion of the ankle. To warrant a higher rating the evidence must show the functional equivalent of marked ankle limitation of motion. Consideration is also given to additional limitation on repetition related to pain, fatigue, incoordination, weakness or lack of endurance. DeLuca, Vet. App. 202. III. History On VA examination in November 2010 the Veteran was noted to have full range of motion of the right ankle, without pain. On repetitive motion testing against resistance there was no additional loss of motion due to painful motion, weakness, impaired endurance, incoordination or instability. A June 2011 Tricare record notes that the Veteran reported worsening right ankle pain and stiffness. X-rays revealed mild right ankle osteoarthritis. Tricare records show that the Veteran had physical therapy for her right ankle in August 2011, October 2012, and December 2012. An August 2011 note indicates that the Veteran reported that her ankle was better, that the swelling had gone down and that the worst pain in the last week had been 3 out of 10. In October 2012 she reported constant anterolateral right ankle pain. She described her right ankle as achy and said that it felt stiff and weak. A December 2012 note states that the Veteran reported improvement in ankle pain, that the symptoms were no longer constant. At the August 2012 hearing the Veteran reported that she had stiffness of the right ankle and that it affected her when she walked long distances and drove long distances. She stated that she had had to go to physical therapy due to her right ankle. She reported wrapping and icing her right ankle, and taking medications for right ankle pain. She testified that her average right ankle pain was 8 out of 10. On VA examination in March 2013 the Veteran reported that she last sprained her right ankle in 2004. She stated that she wore a brace regularly to give the ankle more stability. She noted that standing and walking were limited to 30 minutes. She reported that stair climbing was painful to her right ankle. She also reported that driving for long periods of time caused increased discomfort in the right ankle. She stated that she had flare-ups several times a year with increased pain in the right ankle for several days to a week. She said that during a flare-up she could walk but she had pain in the right ankle with any weight bearing, and that pain at rest was constant. She also stated that stair climbing was more painful during flare-ups and that she could not walk or stand longer than 10 minutes during flare-ups. The Veteran had right ankle plantar flexion limited to 30 degrees with pain beginning at 25 degrees, and she had 15 degrees of dorsiflexion with pain beginning at 10 degrees. The Veteran did not have any additional limitation of motion of the right ankle following repetitive use testing, and no loss of motion due to any weakened movement, excess fatigability or incoordination. The examiner noted that the Veteran had no right ankle laxity and that she did have a mildly antalgic gait. The diagnosis was recurrent ankle sprain with mild degenerative joint disease. IV. Analysis Applying the facts in this case to the criteria set forth above, the Board finds that a rating in excess of 10 percent for the Veteran's right ankle disability is not warranted. As noted above, the November 2010 VA examination revealed full range of motion without pain. Although the March 2013 VA examination shows decreased range of motion, the Board finds that decreased range is moderate in nature and not marked, and that the Veteran's right ankle disability more nearly meets the criteria for the 10 percent rating currently assigned. The March 2013 VA examination report reveals that the Veteran had 30 degrees of plantar flexion and 15 degrees of dorsiflexion, significantly more than half of the right ankle normal range of motion. Even considering pain on motion the Veteran had half of normal dorsiflexion without pain, and more than half of normal range of plantar flexion, without pain. Additionally, the March 2013 VA examiner stated that with repetitive use there was no further loss of function due to pain, fatigue, weakness, lack of endurance, or incoordination. Despite the Veteran's complaints of right ankle pain and the presence of degenerative arthritis (described clinically as mild), the record does not reflect that the Veteran has marked limitation of motion of the right ankle, even with consideration of DeLuca factors. A rating in excess of 10 percent for limitation of the right ankle is not warranted at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings may be assigned during the appeal of any increased rating claim). As the preponderance of the evidence is against the claim, there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). VI. Extraschedular Consideration Under 38 C.F.R § 3.321(b)(1) (2012), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities is made. The governing norm in an exceptional case is a finding that 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. See 38 C.F.R § 3.321(b)(1). In this case, the Schedule is not inadequate. The Schedule does provide for a higher rating for the service-connected right ankle disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Moreover, as discussed above, the schedular criteria for a higher rating have not been shown. ORDER Entitlement to a rating in excess of 10 percent for right ankle sprain is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs