Citation Nr: 1314637 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-49 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether the reduction in the disability rating for traumatic arthritis, status post fracture, right ankle (ankle condition) from 30 percent to 10 percent was proper. REPRESENTATION Veteran represented by: Swords to Plowshares, Veterans Rights Organization, Inc. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1978 and December 1978 to May 1984. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO reduced the disability rating for traumatic arthritis, status post-fracture, of right ankle from 30 percent to 10 percent, effective November 1, 2009. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The Board also noted that during the course of the appeal the Veteran mentioned his continued sensitivity around the scar on his right ankle. The Board notes the Veteran is currently separately rated for the scarring of his right ankle and assigned a rating of 10 percent. The Board notes the Veteran has not filed a claim for increased rating for the scarring on his right ankle. As such this issue is not before the Board at this time and will not be further addressed. FINDINGS OF FACT 1. In January 2004, the RO granted an increased rating for the Veteran's service connected right ankle condition to 30 percent, effective March 2003. 2. Reexamination following the rating increase reflected improvement in the Veteran's service connected right ankle disability as he no longer demonstrated ankylosis of the ankle. 3. At the time of the August 2009 decision which reduced the disability rating for the service-connected right ankle disability from 30 percent to 10 percent, the 30 percent rating had been in effect for more than five years. 4. The RO's decision to reduce the rating for right ankle disability from 30 percent to 10 percent, was made in compliance with applicable due process laws and regulations, and was supported by evidence establishing that there was actual improvement in the Veteran's right ankle condition at the time of the August 2009 rating decision and that the improvement will be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction from 30 percent to 10 percent, effective November 2009, for right ankle disability was warranted. 38 U.S.C.A. §§ 1155, 5112(b)(6) (West 2002); 38 C.F.R. §§ 3.103, 3.105, 3.344, 4.1, 4.2, 4.6, 4.10, 4.27, 4.71,4.71a Diagnostic Codes 5270-5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's traumatic arthritis, status post fracture, of the right ankle had been rated under 38 C.F.R. § 4.71a, DCs 5010-5271, but the August 2009 rating decision rated his ankle under 5010-5270. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 5010-5271 reflected that the Veteran's right ankle disability was rated as arthritis due to trauma under DC 5010 and that the rating assigned was based on ankylosis of the ankle under DC 5270. However, the August 2009 rating decision changed the rating to rating as arthritis due to trauma under DC 5010 but the rating assigned was based on limited motion of the ankle under DC 5271. 38 C.F.R. § 4.71a. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. DC 5270 assigns ratings based on ankylosis of the ankle. A 20 percent rating is assigned when ankylosis is in plantar flexion, less than 30 degrees. A 30 percent rating is assigned when ankylosis is in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. A maximum 40 percent rating is assigned if ankylosis is in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. Under DC 5271, a 10 percent rating is warranted for moderate limitation of ankle motion and a 20 percent rating is warranted for marked limitation of ankle motion. 38 C.F.R. § 4.71a, DC 5271. The terms "moderate" and "marked" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). Where a rating has been in effect for five years or more the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher disability rating. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The provisions of 38 C.F.R. § 3.344 require that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417 (1993). At the time of the August 2009 decision which reduced the disability rating for the service-connected right ankle disability, the 30 percent disability rating had been in effect since January 2004. Thus, as the rating had been in effect for more than five years at the time of the reduction, the provisions of 38 C.F.R. § 3.344 apply in this case. The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Where VA has reduced a veteran's rating without observing applicable laws and regulations, such a rating is void ab initio and it will be set it aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The rating reduction for the Veteran's service-connected left ankle disability was proposed in a January 2009 rating decision. In March 2009 the RO issued a rating decision implementing the proposed reduction before the Veteran's 60 days to respond or present additional information had elapsed. 38 C.F.R. § 3.105(e). However, five months later in August 2009 the RO issued a second rating decision implementing the proposed reduction, effective November 2009. Therefore, although the RO initially erred in implementing the proposed rating reduction too early, the Board finds the RO did not effectuate the reduction until November 2009, well after the required 60 days, and therefore cured their error. In addition, the August 2009 rating decision took into account the additional evidence which was timely submitted by the Veteran. As such, the Board finds no procedural error occurred which prejudiced the Veteran and adjudication of this issue may continue. In the January 2009 rating decision, the RO proposed to reduce the disability rating for the service-connected right ankle disability from 30 percent to 10 percent. At that time, the RO explained the most recent VA examination dated in October 2008 revealed that despite the Veteran's reports of pain upon motion, he demonstrated range of motion in the right ankle to include dorsiflexion to 15 degrees and plantar flexion to 30 degrees. Thus, the evidence reflects there was only a moderately limited range of motion of the ankle, not marked limitation of motion. Also in January 2009 the VA also sent a letter to the Veteran notifying him that he had a period of 60 days within which to submit additional evidence showing that the reduction should not have been made and that if additional evidence was not received within that period, the rating would be reduced. Therefore, the January 2009 letter provided proper notice in accordance with 38 C.F.R. § 3.105(e). In March 2009 the Veteran and his representative each submitted written statements to the VA. The Veteran reported until 2005 he worked as a social worker, and his office was up a hill, which resulted in him climbing the hill several times a day. He reported as a result of that walk his ankle became chronically stiff and swollen. The Veteran quit his job in 2005. The Board notes the record establishes the Veteran quit his job for reasons unrelated to his ankle, and the Veteran does not contend he quit due to his right ankle condition. The Veteran reported since he left work his ankle was not as chronically stiff and painful. However, he stated he was worried if he returned to work it would flare up again. The Veteran also reported his ankle affected him on a daily basis, but was especially worse with the weather. He stated his ankle swells and gets painful before rain. He reported his doctor told him to exercise in order to lose weight to help treat his diabetes and high blood pressure. However, the Veteran reported the pain in his ankle makes it difficult for him to exercise. In his written statement the Veteran's representative argued the VA had no basis for reducing the Veteran's compensation. He noted VA may not reduce the payment unless all evidence of record shows sustained improvement under 38 C.F.R. § 3.344(a). The representative argued the Veteran's range of motion in his right ankle has been unchanged since 2003. The representative also asserted the most recent VA examination, from October 2008, did not provide a full description of the effects of the Veteran's disability upon his ordinary activity. Finally, the representative explained the Veteran's lack of swelling and stiffness is the result of his decrease in daily activity since he no longer works, not an improvement of his condition. In the August 2009 decision, the RO reduced the disability rating for the service-connected right ankle disability from 30 percent to 10 percent, effective November 1, 2009. The reduction was based on the findings made during the June 2007 and October 2008 VA examinations which reflected that the range of motion of the Veteran's right ankle showed only moderate functional impairment. The Board has reviewed all medical record since the initial grant of 30 percent rating in January 2004. The relevant evidence is summarized below. In April 2003 the Veteran was provided with a VA examination. The Veteran reported a history of falling from a ladder in 1982 which resulted in a fractured dislocation of his right ankle. Surgery was performed to repair his right ankle. He reported progressive pain since his surgery, including difficulty walking, running, and standing. The Veteran reported in the previous four or five years in particular his pain had increased, especially with cold and rainy weather. The Veteran reported his ankle also swelled intermittently. The examiner performed range of motion testing which revealed dorsiflexion of -30 degrees and plantar flexion of 60 degrees. However the record also indicated dorsiflection was -40 degrees and plantar flexion was 70 degrees. The examiner diagnosed traumatic arthritis due to prior fracture dislocation of the right ankle. The examiner opined the Veteran should follow these restrictions: no walking more than one mile continuously, driving no more than one hour continuously, running less than 5-10 minutes, and no standing more than 30 minutes continuously. Due to the dual range of motion readings for the Veteran's right ankle, the examiner provided a clarifying addendum to his examination report in October 2003. In this statement the examiner noted the Veteran's right ankle had significant stiffness, and was immobile in such a position that the ankle did not come into neutral. However, the examiner noted the Veteran's plantar flexion was limited to 30 degrees. The examiner opined the limitation of motion was significant "and yet the foot is stuck in a slightly plantar flexed position without being able to come to neutral like the contralateral side." The Board notes the examination report from the 2003 VA examination is therefore not clear on the ability of the Veteran to move his right ankle. The examination noted the Veteran's ankle was frozen, or stuck, suggesting he experienced ankylosis of the ankle. However, the examiner also noted the Veteran demonstrated 30 degrees of plantar flexion range of motion. Therefore, the Board notes the range of motion testing provided evidence against the Veteran's increased rating due to ankylosis. However, based on the benefit of the doubt, the Veteran was granted an increased rating to 30 percent at that time. See 38 C.F.R. § 3.102. In June 2007 the Veteran was provided with an additional VA examination regarding his right ankle condition. The examiner noted his history consistent with the record. The Veteran stated he had pain in his ankle most of the time, with flare-ups occurring approximately three to four times a month. The Veteran denied using a walking aid, such as a cane. He reported his right ankle tended to give out under him due to pain, but he was independent in all activities of daily living. Range of motion testing was conducted on the Veteran's right ankle which revealed dorsiflexion of 15 degrees and plantar flexion to 30 degrees. The Veteran described painful motion near the end of his range. The examiner conducted repetitive use testing and noted the Veteran retained his same range of motion upon repetition. The examiner opined the Veteran had some loss of range of motion, and was unable to run or jump. However, the examiner found the Veteran was able to walk reasonable distances for activities of daily living. The examiner diagnosed moderate traumatic degenerative joint disease of right ankle with chronic pain. The examiner noted it was possible the Veteran would have additional loss of range of motion during flare-ups, however it would be mere speculation on his part as to the degree of impairment. The Board notes the examiner did not mention the Veteran's ankle had ankylosis or was otherwise stuck or frozen in his report, providing evidence against his claim. In October 2008 the Veteran was provided with an additional VA examination of his right ankle. The examiner was not able to review the Veteran's claims file, but reviewed the report from his June 2007 examination, as well as VA medical records. The examiner reported the Veteran's history consistent with the record, and reflected a good understanding of the Veteran's background. The Veteran reported his right ankle was stiff every morning, more so in cold weather. He reported he was unable to walk long distances, but he was independent in life activities and was able to do some volunteer work. Upon examination the examiner noted some bony thickening around the lateral malleolus of the right ankle, as well as soft tissue swelling. Range of motion was dosiflexion to 15 degrees and plantar flexion was 30 degrees, although the examiner noted pain when the Veteran's right ankle was flexed and inverted. The examiner noted the Veteran's motions were slightly painful near the end range of motion, however he did not experience additional loss of range of motion or fatigability during repetitive testing. The examiner opined the Veteran had early to moderate traumatic degenerative joint disease with slight loss of range of motion. He found the Veteran did not have incapacitating flare-ups and could walk a reasonable distance. The examiner opined the Veteran may have fatigability and aggravation of pain with prolonged walking, but the examiner could not guess to what degree. Therefore, both the June 2007 and the October 2008 VA examinations reveal the Veteran had range of motion in right ankle of dorsiflexion to 15 degrees and plantar flexion to 30 degrees. Neither examination indicated that the Veteran's right ankle was stiff, frozen, or otherwise had ankylosis. As such, a rating under diagnostic code 5270, relating to ankylosis, is no longer appropriate based on both of these examinations. Instead, the Veteran's right ankle condition is now most accurately described under diagnostic code 5271, relating to range of motion. Furthermore, since the Veteran continues to demonstrate range of motion throughout most of the normal range, both of these examinations suggest the Veteran has moderate limitation of motion, not marked limitation. Therefore, the Board finds the two most recent VA examinations both indicate there has been a material improvement in the Veteran's right ankle condition in that he no longer has ankylosis. Due to this change the Veteran's right ankle condition currently warrants a 10 percent rating under Diagnostic Code 5271 for moderate limitation of motion. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the Board notes that both in June 2007 and October 2008 the examiners each conducted additional repetition testing. In 2007 the examiner noted that although the Veteran did experience some pain near the end of his dorsiflexion range, he did not demonstrate any obvious fatigability, lack of endurance, or loss of range of motion upon repetition of motions. Similarly, in October 2008 the examiner found the Veteran had slightly painful motion near the end of his range, but did not demonstrate any additional loss of range of motion, aggravation of pain, or obvious fatigability during repetitive motion. The Court has noted that although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As such, the Board has considered that the Veteran did experience some pain upon the outer range of motion in his right ankle, however the Board finds this pain did not constitute functional loss upon repetition of motion. As such, the Board finds that the Veteran is not entitled to a higher rating due to consideration of DeLuca factors. Therefore the Veteran's current improved right ankle condition warrants a reduction to a 10 percent rating due to moderate limited range of motion. As discussed above, the Veteran's representative has stated two primary objections to the reduction of the Veteran's impairment rating. First, the representative asserted the Veteran's most recent VA examination was not full and complete, and specifically did not include a full description of the effects of the Veteran's disability. Secondly, the representative argues that any improvement of the Veteran's right ankle condition was due to his unemployment, which provided a rest from the aggravation that employment had on the Veteran's ankle condition. The Board will address each of these arguments in turn. First, the Board finds that both the 2007 and 2008 VA examinations were as full and complete as the 2003 examination which yielded the increased rating to 30 percent, as required by VA regulations at 38 C.F.R. § 3.344(a). The Board notes the 2003 VA examiner reviewed the Veteran's c-file as well as personally interviewed and examined the Veteran. The examiner also conducted diagnostic range of motion testing and provided restrictions of the Veteran's daily activities caused by his right ankle condition. It does not appear, however, x-rays of the Veteran's right ankle were performed at this time. Unfortunately, neither the 2007 nor 2008 examiners were able to review the Veteran's c-file. However, both examiners noted they reviewed the previous VA examination report, the Veteran's treatment records from the VA, and received a medical history from the Veteran himself. The Board notes the history provided to each examiner was consistent with the record and reflected a good understanding of the Veteran's past medical history. Furthermore, the examiners in both 2007 and 2008 conducted diagnostic range of motion testing on the Veteran. In addition, both of these examiners also conducted x-ray testing of the Veteran's right ankle. The examiners also provided a description of the limitations of daily living, or lack therefore, due to the Veteran's right ankle condition. Specifically, the 2007 examiner noted the Veteran was able to walk reasonable distance for activities of daily living, and could do some stairs, but could not run, jump, or do long distance walking. The 2008 examiner noted the Veteran did not require a walking aid and was able to take care of himself. He continued the Veteran could walk up to half an hour, but had difficulty walking further due to pain. As such, the Board finds the two most recent examinations each specifically addressed the effects of the Veteran's right ankle disability on his activities of daily living. Therefore, the Board finds the examinations from 2007 and 2008 which support the reduction of the Veteran's rating are each as full and complete as the 2003 examination which supported the increased rating. Secondly, the Veteran's representative argues that "any reduction in stiffness and swelling has resulted from a decrease in [the Veteran's] daily activity level which has come at great cost to him-he is unemployed and his health has declined due to a lack of exercise." However, the Board finds review of the record establishes the Veteran quit his employment due to other reasons than his ankle. Therefore, it has not been determined, and the Veteran does not contend, he is totally disabled due to his right ankle condition and as such the regulations at 38 C.F.R. § 3.343 do not apply. Furthermore, a right ankle disability is not a disease subject to temporary or episodic improvement, or a disease which becomes comparatively symptom free after prolonged rest, and as such these standards also do not apply. See 38 C.F.R. § 3.344(a). Therefore, the Board finds the current conditions of the Veteran's ordinary life does not include working, but does include general mobility and occasional walking, including performing the Veteran's stated charity work. The Board finds that both medical examinations found the Veteran continued to be able to walk some distances, though he could not run or jump. The Board finds this limitation is specifically considered in the 10 percent rating for moderate limitation of motion in his right ankle. As such, the Board finds a 10 percent rating for the Veteran's right ankle condition reflects the current status of his disability in the ordinary activities of his daily living. Based on the foregoing, the Board finds that the VA examinations of June 2007 and October 2008 both establish the Veteran's current right ankle disability warrants a rating of 10 percent under Diagnostic Code 5271 for moderate limitation of motion of the right ankle. These examinations both established the Veteran continued to exhibit dorsiflexion to 15 degrees and plantar flexion to 30 degrees, which constitutes a moderate range of motion of the ankle. Neither examination noted the Veteran's right ankle had ankylosis or was frozen, and therefore a higher rating under Diagnostic Code 5271 for ankylosis is no longer warranted. Additionally, the Board finds each examiner noted the Veteran had limitation of activity which would correlate with a 10 percent rating under Diagnostic Code 5270. Finally, the Board notes the treatment records included in the record since 2003 indicate the Veteran continued to experience pain in his right ankle, but do not provide evidence regarding any ankylosis or limitation of motion in that ankle. As such, the Board finds that all evidence of record shows sustained improvement in the Veteran's right ankle disability, specifically that ankylosis is no longer present in his right ankle. 38 U.S.C.A. § 3.344(a). Therefore, the Veteran's right ankle rating is reduced to 10 percent, and the Veteran's claim is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the present case, required notice was provided by a letter dated in January 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The notice advised the Veteran of what was required to prevail on his rating reduction claim regarding his right ankle disability; what specifically VA had done and would do to assist in the claim; and what information and evidence the Veteran was expected to furnish. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records have been obtained, as have VA treatment records. The Veteran has not indicated any relevant private treatment records exist. Additionally, the Veteran was scheduled for a hearing before the Board, however he failed to report to his scheduled hearing date, did not file a motion for a new hearing. VA regulations provide that if the Veteran fails to appear for a scheduled hearing then the case with proceed as though the request for hearing had been withdrawn. 38 C.F.R. § 20.705. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. In addition, the concerns of the Veteran's representative regarding the VA examinations were addressed above, and the Board has determined the examinations were full and complete. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The reduction of the disability evaluation from 30 percent to 10 percent effective November 1, 2009 for service-connected traumatic arthritis, right ankle, status post fracture, was proper. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs