Citation Nr: 1317796 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 03-36 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable rating for a left ankle strain prior to August 28, 2009. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran had active duty from June 2001 to May 2002. This matter comes before the Board of Veterans' Appeals (Board) from a September 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, granted service connection for stress fracture of the right inferior and superior pubic ramus, stress fracture of the left inferior pubic ramus, and left ankle strain. At that time, each of these disabilities was assigned a noncompensable disability evaluation. Subsequently in October 2003, the RO increased the disability evaluation for stress fracture of the right inferior pubic ramus to 10 percent, effective July 18, 2003. In a March 2006 decision, the Board, inter alia, granted an initial evaluation of 10 percent for stress fracture of the right inferior and superior pubic ramus for the entire appeal period; and denied initial compensable evaluations for stress fracture of the left inferior pubic ramus, and left ankle strain. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2007 Order, the Court vacated the March 2006 Board decision, and remanded the case to the Board for further proceedings consistent with a September 2007 Joint Motion for Remand. In January 2008, the Board remanded the case to the RO for additional development. In a January 2009 rating decision, the RO increased the disability evaluation for stress fracture of the left inferior pubic ramus to 10 percent disabling, effective from the day following service discharge. In June 2009, the Board denied entitlement to initial disability evaluations in excess of 10 percent for stress fractures of the right and left inferior and superior pubic ramus and a compensable evaluation for left ankle strain, and granted an evaluation of 10 percent for right foot strain, effective January 5, 2009. The Veteran subsequently appealed that decision to the Court. In May 2010, a Joint Motion for an Order Vacating the Board Decision (Joint Motion) was brought before the Court. In an Order dated that same month, the Court vacated the June 2009 Board decision as to the issues of entitlement to an increased initial evaluation for stress fracture, right and left inferior and superior pubic ramus, and left ankle strain pursuant to the Joint Motion, and remanded the case to the Board for readjudication consistent with its Order. It was noted that the Board awarded a 10 percent rating for right foot strain, effective January 5, 2009 and that matter was not part of the Joint Motion. In a rating decision dated in June 2010, the RO, inter alia, awarded an increased evaluation for the service-connected left ankle strain from 0 percent to 10 percent, effective August 28, 2009. In a February 2011 decision, the Board denied entitlement to an increased initial evaluation for stress fracture, right and left inferior and superior pubic ramus, each rated as 10 percent disabling; and to a left ankle strain, rated as noncompensable prior to August 28, 2009 and as 10 percent disabling from August 28, 2009. The Veteran subsequently appealed that decision to the Court. In a May 2012 Memorandum Decision, the Court vacated the portion of the February 2011 Board decision that pertained to an initial compensable rating for a left ankle strain prior to August 28, 2009 and affirmed the issues of entitlement to an increased initial evaluation for stress fracture, right and left inferior and superior pubic ramus and to an initial rating in excess of 10 percent for a left ankle strain from August 28, 2009. In correspondence dated in May 2012, the Veteran's attorney suggested that a June 2011 notice of disagreement that she submitted on the Veteran's behalf should be construed as a claim for increased ratings for a service-connected right foot strain and a left ankle strain. The attorney noted that the June 2010 rating decision granting an increased, 10 percent rating for the right foot strain implemented a June 2009 Board decision, which granted an initial 10 percent rating for the right foot strain, effective from January 5, 2009. Similarly, the attorney noted that the June 2010 rating decision granted an increased, 10 percent rating for a left ankle strain effective from August 28, 2009 and suggested that the June 2011 disagreement with that decision should also be construed as a claim for increase. Regarding the left ankle claim, the Board denied a rating in excess of 10 percent for a left ankle disability from August 28, 2009, and the Court affirmed that decision. Accordingly, the Board refers the matters of entitlement to increased ratings for a right foot strain and a left ankle strain, which were raised in a June 2011 statement from the Veteran's attorney, to the RO for appropriate action. The issues of reopening claims for service connection for costochondritis, a bilateral wrist disorder, a bilateral elbow disorder, and bilateral leg and feet cramps; entitlement to service connection for a miscarriage and for painful sex, both claimed as secondary to service-connected right and left pubic rami stress fractures; and entitlement to increased ratings for stress fractures of the right and left pubic ramus and degenerative joint disease of the thoracic spine have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT Prior to August 28, 2009, the Veteran's left ankle strain has not been productive of moderate impairment. CONCLUSION OF LAW For the period prior to August 28, 2009, the criteria for an initial compensable evaluation for a left ankle strain were not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in June 2003 and October 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In October 2008, the RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Since this claim remaining on appeal is the appeal of an initial rating, fully satisfactory notice was delivered after the claim was adjudicated. However, the RO subsequently readjudicated the claim based on all the evidence in the November 2009 supplemental statement of the case. The Veteran was able to participate effectively in the processing of her claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. VA has done everything reasonably possible to assist the Veteran with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), to include substantially complying with the prior remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The RO provided corrective VCAA notice in October 2008 regarding her claim for a higher initial rating, service treatment records have been associated with the claims file, all identified and available private and VA treatment records have been secured, the Veteran has been medically evaluated in conjunction with her claim, and the Board has discussed 2006 medical evidence and considered whether a referral for extraschedular consideration is warranted. Thus, the duties to notify and assist have been met. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1 , 4.2, 4.7. 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40 , 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the ankle is considered a major joint. 38 C.F.R. § 4.45. Degenerative or traumatic arthritis, established by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis) and Diagnostic Code 5010 (traumatic arthritis). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran's left ankle disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5271 (disability of the ankle manifested by limited motion). Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal dorsiflexion of the ankle is from 0 to 20 degrees. Normal plantar flexion of the ankle is from 0 to 45 degrees. Since the initial grant of service connection, the Veteran's disability has been assigned a noncompensable rating. In an appeal of an initial rating, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will thus consider entitlement to "staged ratings" in this case. The Veteran states that while running during physical training her left ankle started to swell. X-rays were performed at that time, and they were negative. The Veteran was diagnosed with a sprain and treated conservatively. During service in July 2001, the Veteran complained of her left ankle being swollen for two days due to an injury during a physical test. The examiner instructed the Veteran not to run, jump, or march for five days and to ice her ankle twice daily for ten to fifteen minutes. She was also prescribed 250 mg of Naprosyn. During a March 2002 VA fee-basis examination conducted prior to separation from service, the Veteran complained of pain, weakness, stiffness, and swelling, but she did not describe symptoms of inflammation, locking, fatigue, and lack of endurance. The examiner did not find instability, incoordination, or recurrent subluxation. The Veteran reported that her symptoms were present on and off and were distressing in nature, occurring monthly, and lasting for days. However, she could function with the distress of the symptoms. Her symptoms were aggravated by walking and wearing combat boots, but she could alleviate her symptoms by taking off her boots and resting. On examination, the Veteran's ankle joints appeared within normal limits bilaterally. The range of motion of the ankles was as follows: dorsiflexion 0-20 and plantar flexion 0-45 bilaterally. The examiner did not find any pain, weakness, stiffness, swelling, inflammation, fatigue, or lack of endurance. There was no arthritis present on x-ray examination. The diagnosis was left ankle strain based on the subjective factor of a history of restricted range of motion of the left ankle. In her notice of disagreement received in October 2002, the Veteran disagreed with the initial noncompensable rating assigned for her left ankle strain and for a right foot strain, among other issues. She stated that the "strain that was put on [her] feet during [her] time in the military [was] still giving her problems today." She stated that her "feet [were] constantly swollen and almost unbearable to walk on at times." In July 2003 correspondence, the Veteran stated that her left ankle sprain was still giving her problems, including constant swelling and numbness. During a post-service VA fee-basis examination in July 2003, the Veteran stated that her ankle swells up from time to time since the incident, but she denied any significant pain. Physical examination revealed dorsiflexion to 20 degrees on the left and plantar flexion to 45 degrees bilaterally. Range of motion was not limited by pain, fatigue, weakness, lack of endurance, or incoordination, and there was no dorsiflexion deformity, plantar flexion deformity, or inversion or eversion deformity. Dorsiflexion of the ankles and joints produced no pain. Reported findings of a left ankle x-ray were no acute fracture or dislocation seen; no significant joint space narrowing noted; ankle mortise appears intact; and bone mineralization within normal limits. The impression was no evidence of acute osseous injury or significant degenerative change. The diagnosis was left ankle strain with normal radiographic appearance. Treatment records from the Atlanta VA Medical Center (VAMC) dated from June 2002 to August 2007 are associated with the claims file. A May 2006 tele nurse triage note reflects the Veteran's complaint of cramps in her feet that come and go with cramping so bad that she has to push down on her feet to keep them from balling up. She stated that the cramping was now going down to her toes and ankles. During June 2006 treatment, she reported occasional foot pain and cramping and that she notices stiffness especially in the morning. The assessment was likely plantar fasciitis. In August 2006 correspondence, the Veteran notified the RO that she was diagnosed with plantar fasciitis in June 2006; she provided this information in support of her claim for initial compensable ratings for her right foot strain and left ankle strain disabilities. VA treatment records from the Hampton VAMC dated from February 2008 to January 2011 are associated with the claims file, including the electronic Virtual VA file. In February 2008, the Veteran presented as a new patient at the Hampton VAMC. She described bilateral pelvic stress fractures during military service and denied other joint disorders. Physical examination findings relating to the musculoskeletal system and extremities did not describe any left ankle disorder. During a January 2009 VA examination, the Veteran complained of left ankle numbness, pain, stiffness, and tenderness. She denied left ankle swelling, deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, dislocation or subluxation, locking, or effusions. She had pain two to three days a week rated as two to three on a scale of ten; she soaked the ankle in hot water, which decreased the symptoms. Elevation was completely effective in relieving the symptoms. On examination of the left ankle, there was no evidence of swelling, instability, weakness, abnormal weight bearing, tendon abnormality, or ankylosis. Range of motion testing revealed no objective evidence of pain with left dorsiflexion from 0 to 20 degrees and left plantar flexion from 0 to 45 degrees. The examiner noted that there was no additional pain or limitations following repetitive motion. X-rays of the ankles showed that there was no significant bone, joint, or soft tissue abnormality bilaterally. The impression was unremarkable bilateral ankle. A June 2009 treatment record from American Foot & Ankle Center indicates that the Veteran presented with complaints of foot pain, cramps, burning, tingling, and swelling around her ankles since 2001. Following a physical examination and x-rays of her feet, the assessment was bilateral tarsal tunnel [syndrome], no neuropathy; pes planus; and mild osteopenia. A left ankle disorder was not identified. Prior to August 28, 2009, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for her left ankle strain. The Veteran reported symptoms of left ankle pain, swelling, stiffness, numbness, and weakness; however, VA examinations in March 2002, July 2003, and January 2009 demonstrated left ankle range of motion from 0-20 degrees of dorsiflexion and 0-45 degrees of plantar flexion with no evidence of pain, fatigue, weakness, lack of endurance, or incoordination. X-ray studies of the left ankle on VA examination in March 2002, July 2003, and January 2009 did not reveal arthritis, fracture, dislocation, joint space narrowing, or other abnormality. The Board has considered the effects of pain and functional loss on repetitive use; however, while the Veteran has subjectively reported such symptoms, medical evidence of record has not revealed objective evidence of left ankle pain, including on repetitive range of motion, which has been normal during the entire appeal period prior to August 28, 2009. See 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran is competent to describe pain and resulting limitation of function in the left ankle. However, to the extent she claims painful motion in the left ankle, her claims are not credible. VA examinations conducted during this period revealed full and painless left ankle range of motion, without objective signs of dysfunction or abnormality. Accordingly, a compensable evaluation for limitation of motion prior to August 28, 2009, is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. In its May 2012 Memorandum Decision, the Court noted that the Board failed to discuss favorable evidence from 2006 regarding foot cramping and pain on use and why the Veteran "was not entitled to 'at least the minimum compensable rating' if her ankle was 'actually painful' prior to August 28, 2009." The Court noted that the Veteran had not asserted that the Board failed to consider any appropriate Diagnostic Codes in its February 2011 analysis; accordingly, the Veteran is rated under the appropriate Diagnostic Code, 5271. The Court also concluded that the Board's February 2011 extraschedular analysis was properly conducted. Regarding the 2006 evidence regarding foot cramping and pain on use, the Veteran is service-connected for a left ankle strain. The Veteran's disability is rated under Diagnostic Code 5271; disabilities of the feet are rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5276 through 5284. The 2006 medical evidence primarily refers to complaints of cramping in the Veteran's feet, and in May 2006 she stated that the cramping was now going down to her toes and ankles. When she reported foot cramping again in June 2006, the assessment was likely plantar fasciitis. Similarly, the January 2009 VA examination report included x-ray studies of the feet, which revealed mild degenerative changes at the first MTP [metatarsophalangeal] joint [the big toe joint] bilaterally, and the diagnosis regarding the feet was right and left foot strain with MTP joint degenerative changes bilaterally. Moreover, private treatment records dated in June 2009 revealed bilateral tarsal tunnel [syndrome], pes planus; and mild osteopenia based on physical examination and x-rays of the feet. In summary, the evidence of record, including 2006 VA treatment records, reflects complaints of foot cramping with one report of the pain extending to both ankles. However, the medical evidence described above does not warrant an increased, compensable rating for the left ankle disability because it is primarily pertinent to disability of the feet. Even considering the Veteran's subjective report in 2006 of pain extending into her ankle, the pain emanated from the feet and the evidence does not reflect painful left ankle motion or functional impairment. The Board has considered other diagnostic codes relevant to the Veteran's left ankle strain; however, none of the competent medical evidence of record shows that the Veteran has ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, an astragalectomy, or malunion of the tibia or fibula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274, 5262 (2012). Therefore, a compensable disability rating prior to August 28, 2009 under other diagnostic codes pertaining to the ankle is not warranted. Extraschedular Consideration The Board must address referral to the Chief Benefits Director or the Director, Compensation and Pension Service, under 38 C.F.R.§ 3.321 (b)(1) only where circumstances are presented which the Director might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash, supra. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In the May 2010 Joint Motion, the parties pointed out that the evidence raised a question of whether the Veteran's service-connected disabilities then on appeal, including the left ankle disability, resulted in marked interference with her employment. They specifically noted a November 2008 lay statement by the Veteran's husband, stating that the Veteran "can't work like she used to," and a comment made by the Veteran during a January 2009 VA examination that she was at that time unemployed because she had moved and had not been able to find work. The parties noted that the Veteran had submitted evidence of pain which affected her on a daily basis, that she was currently unemployed, and that the lay evidence "suggests that her pain is debilitating and severe." The Board has given the lay evidence regarding the symptoms of the left ankle disability and its effect on the Veteran's employment careful consideration; however, there is no objective evidence that the service-connected left ankle disability interferes with employment more than is contemplated by the current noncompensable schedular evaluation for the time period prior to August 28, 2009. During a July 2006 VA examination, the Veteran reported that she was working full-time and had no absences. The November 2008 statement by the Veteran's husband does indicate that the Veteran "can't work like she used to," but the statement does not indicate that the Veteran was incapable of maintaining employment, nor does it describe the level of impairment caused by the Veteran's service-connected left ankle disability. The Veteran stated in January 2009 that she was unemployed due to a move, and did not indicate that her service-connected disabilities, including her left ankle, had anything to do with her inability to find a job. Employment information from Ferguson, in Virginia, shows that the Veteran worked there for two months, from February 2008 to April 2008, and that she lost no time due to disability. Since February 2009, the Veteran has been employed full-time as an office automation clerk at a VA Medical Center, and has lost no time due to disability. Clearly, the Veteran is capable of maintaining full-time employment. The Board also observes that the evidence does not establish that the Veteran has experienced hospitalizations or other severe or unusual impairment due to her service-connected left ankle strain. The VA examinations prior to August 2009 show full range of motion of the left ankle without objective evidence of pain, and the medical evidence of record does not reflect even mild left ankle impairment. In short, the rating criteria for the left ankle disability contemplate not only her symptoms but the severity of her disability. The Board does not find that the schedular criteria have been inadequate for rating the manifestations of her service- connected left ankle disability. See 38 U.S.C.A. § 1155 (Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity). For these reasons, referral for extraschedular consideration for the left ankle strain is not warranted. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). ORDER Entitlement to an initial compensable rating for a left ankle strain prior to August 28, 2009 is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs