Citation Nr: 1315912 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-13 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for recurrent lateral ligamentous sprain, left ankle. 2. Entitlement to an initial disability rating in excess of 10 percent for recurrent lateral ligamentous sprain, right ankle. 3. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active service from June 1998 to August 1998 and from January 2000 to February 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the St. Paul, Minnesota Regional Office (RO). The rating decision, in relevant part, granted service connection for recurrent lateral ligamentous sprain without degenerative joint disease or arthritis, left and right ankles, with separate noncompensable evaluations effective from the date of service connection, February 17, 2007. In a March 2009 rating decision, the RO increased the disability evaluations for the service-connected left and right ankle from 0 percent disabling to 10 percent, effective February 17, 2007. This action did not satisfy the Veteran's appeal. Subsequent to the certification of the Veteran's appeal, the Board received additional evidence that was not initially considered by the RO. However, the Veteran's representative submitted a written waiver of RO consideration of the evidence, and thus the Board will consider it in making a decision on the merits of the case. See 38 C.F.R. § 20.1304(c) (2012). The Board has not only reviewed the Veteran's physical claims files but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The record does not reflect that the Veteran's service-connected recurrent lateral ligamentous sprain of either the left or right ankle has ever been manifested by marked limitation of motion, ankylosis, or malunion of the os calcis or astragalus; the Veteran has not undergone an astragalectomy. 2. In February 2010, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, requested withdrawal of the appeal with respect to the issue of an increased rating for service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected recurrent lateral ligamentous sprain, left ankle, have not been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 3.15, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271 (2012). 2. The criteria for a disability rating in excess of 10 percent for service-connected recurrent lateral ligamentous sprain, right ankle, have not been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 3.15, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271 (2012). 3. Entitlement to a rating in excess of 30 percent for service-connected PTSD is withdrawn. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive 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 these claims. The Veteran contends that he is entitled to an initial disability rating in excess of 10 percent for recurrent lateral ligamentous sprain, left and right ankles. For the reasons that follow, the Board concludes that increased ratings are not warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. In the February 2008 rating decision that granted service connection for the Veteran's recurrent lateral ligamentous sprain, left and right ankles, the RO rated the disabilities as noncompensable under Diagnostic Code (DC) 5271, for limitation of ankle motion. DC 5271 provides assignment of a 10 percent rating for moderate limited motion of the ankle, and a 20 percent rating for marked limited motion. 38 C.F.R. § 4.71a (2012). This specific DC does not provide for a rating in excess of 20 percent. The words "moderate" and "marked," as used in the various DCs, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2012). The Board notes that normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2012). The Veteran was later granted separate 10 percent ratings, from the date of service connection, for "painful or limited motion". The Veteran was afforded a VA examination in December 2007 in which the claims file was reviewed. The Veteran reported that he reinjured his ankles about every 2 to 3 months with increased swelling and pain treated with medication and a wrap. He did not report any limitation with sitting, standing, walking, or reaching; he did report limitation to lifting 150 to 200 pounds. Physical examination showed mild tenderness in anterolateral ligaments; no effusion, edema, redness, heat, inflammation, abnormal movement, instability, or guarding movement. Range of motion was plantar flexion 0 to 450 [45] degrees (normal to 45 degrees) and dorsiflexion was 0 to 20 degrees (normal to 20 degrees). There was no pain with motion and strength was normal. There were no additional functional limitations of the joint, including no additional loss of range of motion, during flare-ups or secondary repetitive use of the joint times three, painful motion, weakness, excessive fatigability, lack of endurance or incoordination. X-rays of both ankles were normal. The Veteran reported being an apprentice electrician with no time lost from work in the prior 12 months. The VA examiner diagnosed bilateral ankle recurrent lateral ligamentous sprain, without degenerative joint disease or arthritis. The Veteran submitted a statement in April 2009 that his bilateral ankle disability was preventing him from doing his job, holding his children, or sitting cross-legged on the floor. The Veteran was afforded a VA examination in August 2009 in which the claims file was reviewed. He reported rolling both ankles at least 2 to 3 times a month and had daily bilateral ankle pain on the lateral aspects of each ankle. He reported that prolonged walking over 30 minutes and repetitively going up and down stairs would increase his soreness and stiffness in the lateral aspect of both ankles. He reported wearing high ankle works boots for support on his job as an electrician wireman. He reported falling monthly because of his ankles but no limitation with lifting, reaching, or sitting. Physical examination of the right and left ankles showed tenderness but no effusion, edema, redness, heat, inflammation, abnormal movement, instability or guarding. Range of motion for the right and left ankles was plantar flexion 0 to 40 degrees and dorsiflexion 0 to 20 degrees. Pain was noted on inversion testing but there was no pain with motion and strength was normal. X-rays of the right and left ankle were normal and the examiner diagnosed chronic right and left ankle recurrent lateral ligaments strain associated with recurrent sprain. There were no additional functional limitations of the joint, including no additional loss of range of motion, during flare-ups or secondary repetitive use of the joint times three, painful motion, weakness, excessive fatigability, lack of endurance or incoordination. The Veteran submitted statements from his spouse and M.B., R.N. in September 2009 in which they stated that the Veteran had severe limitations in the movements of both ankles. Both attested to the Veteran's symptoms to include that he was unable to crouch, could not sit on the floor and play with his children, had difficulty walking for long periods, sprained and twisted his ankles frequently causing pain, and had an inability to exercise properly. The Veteran also submitted a statement in September 2009 in which he stated that he could not sit on the floor with his children because of popping, swelling, and pain in his ankles. He also stated that his ankles rendered him useless at his job if he sprained them. D.G.H., D.C., submitted a private examination report from February 2010 in which the Veteran reported that his ankles popped frequently and swelled to the size of his calves. He also reported having difficulty ambulating on any uneven surfaces. Examination performed without a goniometer showed normal appearance and pulses bilaterally, the malleoli were tender to the touch on both sides, there was mild loss of plantar flexion and eversion bilaterally. There was marked loss of inversion and moderate loss of dorsiflexion on both sides. The examiner noted that he stopped range of motion testing when the Veteran experienced pain. The Board acknowledges the February 2010 examination findings of D.G.H., D.C., of mild loss of plantar flexion and eversion bilaterally, marked loss of inversion, and moderate loss of dorsiflexion on both sides, as well as the Veteran's statements regarding pain and limitation of motion caused by pain. While the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board finds that it cannot adequately assess the findings of D.G.H., D.C., as he did not use a goniometer; that is, the Board cannot translate the degree of impairment used for the terms "mild", "marked", or "moderate". Based on the above evidence, the Board finds that disability ratings in excess of 10 percent are not warranted for any period on appeal. Although the Board has considered the Veteran's subjective complaints and the lay statements submitted on his behalf and considers them credible to the extent that they are describing his symptoms, the evidence of record does not show that his impairment more closely approximates the schedular criteria for the next higher evaluation. That is, while the Veteran had some limitation of motion, problems playing with his children, with his plantar flexion limited by 5 degrees in his August 2009 VA examination, he has consistently had full dorsiflexion (extension). The Board finds that this degree of limitation of motion does not rise to the level of "marked", as required for the next higher disability rating under DC 5271. As noted above, the RO has granted 10 percent ratings for painful motion. The evidence of painful motion is the same evidence that the Board would use to evaluate additional functional loss under the DeLuca criteria. The Board is prohibited from using the same evidence to grant two benefits. See 38 C.F.R. § 4.14. The Board concludes that the rule of DeLuca would not result in a higher rating for the Veteran. In this regard, the Board has reviewed the Veteran's statements and the evidence he has submitted very carefully. While the Veteran clearly has problems with these disabilities (which is not in dispute), if he did not there would be no basis for the current evaluations, let alone higher evaluations. In other words, if he did not have some problems at work, holding his children, or sitting cross-legged on the floor, there would be no basis to find a combined one-fifth decrease in his ability to function in a work environment (two 10 percent evaluations). Without considering his complaints of pain there would be no basis to award him the current evaluations based on the objective findings of several examinations, which simply provide highly probative evidence against a finding that the Veteran has marked limited motion, and some evidence against the current evaluations. His statements and those he has submitted generally support the current finding of moderate limited motion of the ankles, with the types of problems a person with a moderate disability in both ankles would cause. The VA examinations would generally not support the current evaluations. It is only in taking into consideration his complaints that the Board can find moderate limited motion of the ankles. As there is no evidence that the Veteran suffers from ankylosis, malunion of the os calcis or astragalus, or has received an astragalectomy, a disability rating under Diagnostic Codes 5270, 5272, 5273, or 5274 is not appropriate. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board concludes that the criteria for initial disability ratings in excess of 10 percent for recurrent lateral ligamentous sprain, right ankle and left ankle have at no time been met. Accordingly, additional staged ratings are inapplicable. See id. As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluations for the Veteran's left and right ankle disabilities are not inadequate. The Veteran merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorders that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for the service-connected disabilities are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. Entitlement to a total disability rating based on individual unemployability (TDIU) is an alternative theory of all claims for a higher disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU may be raised explicitly by a claimant or inferred from the record. An inferred claim for a TDIU is raised as part of an increased rating claim only when certain requirements are met. Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009). TDIU is raised by inference when: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In the present appeal, the Veteran has made no mention of unemployability due to his disabilities; in fact, the Veteran is currently working as an electrician wireman. Thus, the Board concludes that the Roberson requirements are not met and that consideration of TDIU is not warranted. Withdrawn Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by an appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In correspondence received in February 2010, the Veteran's representative stated that the Veteran was withdrawing his appeal regarding PTSD percentage of 30 percent. That is, the Veteran through his representative properly withdrew his appeal for entitlement to a higher rating for service-connected PTSD. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements in initial ratings cases. See Dunlap v. Nicholson, 21 Vet. App. 112 (2006). Prior to initial adjudication of the Veteran's claims, a letter dated in October 2007 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio, at 187. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and pertinent post-service records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in December 2007 and in August 2009. The Veteran has not reported receiving any recent treatment specifically for these conditions (other than the treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). 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 2009 VA examination report is thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). ORDER Entitlement to an initial disability rating in excess of 10 percent for recurrent lateral ligamentous sprain, left ankle, is denied. Entitlement to an initial disability rating in excess of 10 percent for recurrent lateral ligamentous sprain, right ankle, is denied. The claim for entitlement to an increased rating in excess of 30 percent for service-connected PTSD is dismissed. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs