Citation Nr: 1314879 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-44 637 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating greater than 10 percent for peroneal tendinitis of the right ankle with chronic instability and a chronic lateral complex tear. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from September 1976 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the VA RO in St. Petersburg, Florida, that granted service connection for peroneal tendinitis for the right ankle with chronic instability and a chronic lateral complex tear and assigned a 10 percent disability rating, effective June 12, 2008. FINDING OF FACT Marked motion restriction involving the right ankle has been shown throughout the appeal period. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, and not higher, for peroneal tendinitis of the right ankle with chronic instability and a chronic lateral complex tear have been met, effective from June 12, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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. § .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. The issue of entitlement to an initial increased rating is a downstream issue, arising from the initial evaluation assigned for the disability once service connection is awarded. For downstream issues, no VCAA notice is required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Regardless, the Veteran was provided adequate notice by letters dated in June 2008 and July 2009. In addition to its duty to notify the Veteran with regard to his claim, 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 treatment records and records of pertinent medical treatment since service, and providing a Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, one reason the case was remanded by the Board in 2011 was to obtain VA treatment records. This has been accomplished. Additionally, the case was remanded in order that the Veteran might be accorded a current orthopedic examination for the purpose of determining the severity of his service-connected right ankle disorder. This examination was conducted in June 2011. The examiner addressed the severity of the issue on appeal in conjunction with a review of the claims file and examination and interview with the Veteran. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected ankle disorder since he was last examined. A search of the Virtual VA file does not reflect any records subsequent to September 2011. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The June 2011 examination report is thorough. It is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified, and the record does not otherwise indicate, additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Barnard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the provisions of the VCAA. See 38 U.S.C.A. §§ 5102 and 5203; 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Pertinent Law and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practically be determined, for the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Where a Veteran appeals the initial rating assigned for disability on a claim for service connection where the disability has been granted, evidence contemporaneous with the claim for service connection and with a rating decision granting service connection would be most probative of the degree of disability consisting at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous..." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time, based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). (VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.) Here, the Board finds the record shows the disability involving the right ankle has not significantly changed during the appeal time frame and a uniform evaluation is warranted. The Veteran's right ankle tendinitis has been rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71 a, Diagnostic Code 5024 for tenosynovitis. Under that Code, tenosynovitis is rated on limitation of motion of the affected part. Diagnostic Code 5271 provides a 10 percent evaluation for moderate limited motion of an ankle, and a 20 percent evaluation for marked motion restriction of an ankle. The normal range of motion for an ankle is dorsiflexion to 20 degrees and plantar flexion at 45 degrees. 38 C.F.R. § 4.71 Plate II. A higher evaluation is only warranted when there is ankylosis with the ankle. 38 C.F.R. § 4.71 a, Diagnostic Code 5270. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 20th Ed., page 86. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The pertinent evidence of record includes the report of a joints examination of the Veteran by VA in September 2008. The claims file was reviewed by the examiner. The Veteran stated that over the years since his discharge from service, he had had multiple episodes of ankle instability, swelling, and pain. He indicated he had received no treatment during that time frame. It was about five months earlier when he was involved in a biking accident and he reinjured the right ankle. He now complained of pain, weakness, swelling, and instability. He was taking Ibuprofen on an as-needed basis. It was stated there was no deformity. However, there was instability, pain, weakness, and incoordination. No locking episodes were reported. Effusion was reported. There were no symptoms of inflammation. The Veteran stated the condition would flare up on prolonged standing and walking. He would take medication and rest. It was noted he was able to play tennis and basketball and stand and walk for long periods. It was remarked there were no incapacitating episodes resulting from arthritis. As for functional restrictions, he was able to walk one-quarter mile. He was able to stand for 15 or 30 minutes. He related that he always used a cane and a brace. On examination, the Veteran's gait was described as antalgic. There was no evidence of abnormal weight bearing. Findings with regard to the ankle included edema, tenderness, and instability. The instability was described as increased laxity to anterior/posterior/inversion/eversion stress. There was also tenderness to palpation. Right ankle dorsiflexion was from zero to 15 degrees actively and plantar flexion was from zero to 45 degrees actively. The examiner stated there was objective evidence of pain following repetitive motion. However, there were no additional limitations after three repetitions of range of motion testing. An X-ray study of the ankle showed that bony structures were normal with no signs of fracture or dislocation. The joint spaces were normal. The soft tissues were described as unremarkable. It was noted the Veteran was not employed at the present time. His usual occupation was that of a repair office equipment specialist. The reason for his unemployment was given as a difficult economy and right knee and right ankle pain. The diagnoses were listed as: chronic right ankle instability, peroneal tenderness of the right ankle; and chronic lateral complex tear of the right ankle. It was stated there was significant impact on the occupation and this included decreased mobility, difficulty lifting and carrying, weakness and fatigue, decreased strength, and pain. As for impact on performance of usual daily activities, the degree of impairment was described as severe for chores, exercise, sports, and recreation. Impairment was described as moderate for shopping, traveling, and driving. It was stated there was no impairment pertaining to feeding, bathing, dressing, toileting, or grooming. Of record is a November 2008 communication from a nurse practitioner at the VA Medical Center in Miami, Florida. She stated the Veteran received his medical treatment there and was being treated and evaluated for chronic right knee and ankle pain. Medications included Etodolac, Robaxinol, Tramadol, and Vicodin with minimal control of pain. The Veteran reportedly took extra doses of medication to obtain some comfort. His sleep was also bothered by the pain and he had to take Restoril in order to get some sleep. She stated the Veteran had had physical therapy, but had to stop because the pain was too great. He was going to try acupuncture. He applied ice to his knee every night and put the foot into a bucket of ice to reduce the pain. He also used an analgesic balm for topical pain relief. The nurse practitioner stated the Veteran's life had changed because of his knee and ankle pain and remarked that his activities had to center on what he could do and how much pain he could manage. It was her opinion that he "deserves more service connection due to the effect it has on his activities of daily living, enjoyment of life, and impression for the lifestyle changes he has had to make." Additional pertinent evidence includes the report of a VA podiatry outpatient visit in January 2009. The Veteran had fallen down stairs several days earlier. He stated he inverted the right ankle, but did not feel or hear it pop. He stated he had pain that was 3 out of 10 and was aggravated by ambulation. He reported having had right ankle instability in the past because of previous sprains. An X-ray study of the right ankle showed no evidence of fracture, or increased diastasis. The mortise was intact. The assessment was Grade I ankle sprain on the right. There was no instability and only minimal edema. There was no eccymosis. The prognosis was good. He was to ambulate in a boot for two weeks. He was to keep the foot elevated and ice as appropriate. Also of record is an October 2010 communication from a physician at the VA Medical Center in Miami. He stated he had evaluated the Veteran that month for chronic ankle pain. It was stated the Veteran had severe pain, limited range of motion, and weakness in the ankle that caused an abnormal gait. Problems with the right knee were also noted. It was stated the Veteran had been compliant with a regimen of anti-inflammatory medications, physical therapy, and chiropractic treatment with acupuncture. However, the pain was still not controlled and function had not been fully restored. The Veteran experienced periodic flares of pain as well. He was not able to fully participate in leisure activities as well as job related activities that would involve prolonged weight bearing or prolonged sitting. The Veteran was afforded another rating examination by VA in June 2011. The claims file was reviewed by the examiner. The Veteran stated that since his previous rating examination in 2008 he had continued to have pain, giving way on weakness, and a history of falling. Symptoms were the worst on prolonged standing and walking. He was continuing to take Etodolac and Tramadol. He stated the response to treatment was poor. On examination, there was no deformity of the right ankle. There was instability and there was pain. No stiffness was reported. Weakness and incoordination and decreased speed of joint motion were noted. There were no episodes of dislocation or subluxation. There were no locking episodes or effusions. It was stated the Veteran had flare-ups on a weekly basis and they would last hours. They were described as severe in degree. Precipitating factors were prolonged standing. Alleviating factors were described as medications. The Veteran was described as walking with a limp. It was stated he was able to stand for 15 to 30 minutes and was able to walk one-quarter mile. He was seen on an "intermittent, but frequent" basis. Gait was described as normal. There was no evidence of abnormal weight bearing. As for summary of findings, the examiner referred to tenderness, pain at rest, abnormal motion, and guarding of movement. There was tenderness to palpation of the ligaments and pain on inversion. There was instability. As for motion, right dorsiflexion was from zero to 10 degrees and right plantar flexion was from zero to 35 degrees. There were episodes of pain following repetitive motion, but there was no additional limitation after three repetitions of range of motion. Also, there was no joint ankylosis. X-ray studies done in February 2010 showed that the bony structures were normal with no signs of fracture or dislocation. The joint spaces were normal and soft tissues were unremarkable. It was noted the Veteran's usual occupation was as an electronic technician. He was not currently employed. He had not worked for the past 2 to 5 years. It was stated that he was not working because he was "laid off, company closed." The diagnosis was chronic right ankle sprain with instability, peroneal tendinitis. As for impact of occupational work, it was stated the ankle caused the Veteran "difficulty standing to fix equipment." As for functional impairment, it was stated there was severe impairment on shopping. However, it was stated there was no impairment on any of the usual daily activities, to include exercise, recreation, traveling, feeding, bathing, and dressing, toileting, grooming, driving and performing chores. Reports of VA outpatient visits subsequent thereto through September 2011 refer to unrelated concerns. No appreciable problems were identified with respect to the right ankle disability. The Board notes that the terms "moderate" and "marked" in the criteria are not defined in the Rating Schedule. Therefore, rather than implying a mechanical formula, VA must evaluate all the evidence to the end that all decisions are equitable and just. 38 C.F.R. § 4.6. After a careful review of the evidence above, the Board finds that the Veteran's right ankle disability approximates the criteria for a 20 percent rating under DC 5271, effective from June 12, 2008. The Veteran is competent to report pain, swelling, weakness, and instability involving his ankle. See Layno v. Brown, 6 Vet. App. 465, (1994). On VA examination in June 2011, he had right ankle dorsiflexion to 10 degrees, which is only 50% of normal. In addition, the Veteran has consistently demonstrated instability of the right ankle. See 38 C.F.R. § 4.45(b); see Mitchell, 25 Vet. App. at 38-43; DeLuca 8 Vet. App. at 204-7. Taken as a whole, the evidence approximates marked limitation of motion. A 20 percent rating is the highest available for limited motion of the ankle under DC 5271. When the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In the absence of ankylosis of the right ankle, no higher rating is available. The Veteran has consistently demonstrated movement of his right ankle. Thus, a higher rating is not warranted under Diagnostic Code 5270. The Board has considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue 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. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. Referral for extraschedular consideration is not warranted. The right ankle disability is manifested by symptoms and functional impairment expressly addressed by the rating criteria, including pain, swelling, limited motion, weakness, and instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5271; see also 38 C.F.R. §§ 4.40, 4.45, and 4.59 (providing for at least a compensable rating for painful motion, as well as excess fatigability, weakness, more movement than normal, and incoordination). The Veteran does not have symptoms associated with his right ankle that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's right ankle disability and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore referral for extraschedular consideration is not warranted. See id. The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims (Court) held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the Record, is not a separate claim for benefits, but rather, is part and parcel of a claim for increased compensation. In other words, if the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. In the present case, the Board finds no indication in the record that reasonably raises a claim of entitlement to TDIU. The Veteran is unemployed, as noted at the time of his 2011 examination, but the reason for his unemployed status was that he was laid off because the company for which he worked had closed. In summary and for the reasons and bases set forth above, the Board finds that the evidence supports a finding that the Veteran's service-connected right ankle disability warrants a 20 percent rating, but no higher, as of June 12, 2008. All reasonable doubt has been resolved in the Veteran's favor. See Gilbert, supra, 1 Vet. App. at 55. ORDER Entitlement to an initial disability rating of 20 percent, but not higher, for peroneal tendinitis of the right ankle with chronic instability and a chronic lateral complex tear is granted, subject to the regulations applicable to the payment of monetary benefits. ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs