Citation Nr: 1317850 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 11-25 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for chronic right ankle strain with scar, residual of surgery. ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1995 to December 1995; October 2001 to October 2002; and from August 2007 to January 2010. This matter comes to the Board of Veterans' Appeals ("Board") on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Columbia, South Carolina, which granted the Veteran's claim of entitlement to service connection and assigned a noncompensable disability evaluation, effective January 15, 2010. In a subsequent July 2011 rating decision, issued by the Atlanta, Georgia, RO, the Veteran's disability evaluation was increased to 10 percent, effective January 15, 2010. Since the RO did not assign the maximum disability rating possible, the appeal for a higher rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). When this case was previously before the Board in November 2012, it was remanded for additional evidentiary development; it has since been returned for further appellate action. 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. FINDING OF FACT The record does not reflect that the Veteran's service-connected chronic right ankle strain with scar, residual of surgery, 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. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected chronic right ankle strain with scar, residual of surgery, 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 Code 5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 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 March 2010 rating decision that granted service connection for the Veteran's chronic right ankle strain with scar, residual of surgery, the RO rated the disability 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 a 10 percent rating, from the date of service connection, for "painful motion of the ankle" under 38 C.F.R. § 4.59 which allows for consideration of functional loss due to painful motion to be treated to at least the minimum compensable rating for a particular joint. Historically, a Physical Evaluation Board found that the medical and physical impairment from a right ankle injury in service prevented the Veteran from performing his duties as required by grade and military specialty. At the time, dorsiflexion was noted as 10 degrees and plantar flexion was noted as 50 degrees. The Veteran was afforded a VA examination in March 2010 in which the claims file was not reviewed; therefore, he was afforded another VA examination per the Board's November 2012 remand. In the March 2010 examination, the Veteran reported daily pain in his right ankle. He also reported limitation with running, riding a bike, playing basketball, walking barefoot, and standing for over 30 minutes; however, he stated that he could walk for 2 miles. Physical examination of the ankle showed right dorsiflexion from 0 to20 with no pain and no additional limitation; plantar flexion was 0 to 45 with no pain and no additional limitation, providing evidence against this claim. The Veteran submitted a statement with his formal appeal in August 2011 and additional correspondence in December 2012, stating that he had continuous pain, muscle spasms, and numbness; could not run, jump, walk barefoot, sit for long periods of time, and his condition affected his driving. He also noted using a walking cane, ankle braces, shoe insoles and other methods as ordered. The Veteran was afforded a VA examination in February 2013 in which the claims file was reviewed. Physical examination showed right ankle plantar flexion to 40 degrees with painful motion at 40 degrees; right ankle dorsiflexion was to 15 degrees with painful motion at 15 degrees. There was no additional limitation in range of motion with repetitive-use testing. There was no ankylosis, malunion of the calcaneus (os calcis), and the Veteran did not have an astragalectomy. The VA examiner noted functional loss or functional impairment to include pain on movement. The examiner noted that the Veteran's right ankle had no impact on his ability to work, providing more evidence against this claim. The Board notes that the claims file contains additional VA and service medical records showing some complaints of pain, spasms, numbness, and swelling affecting the Veteran's ability to walk, stand, run or perform impact activity. Based on the above evidence, the Board finds that a disability rating in excess of 10 percent is not warranted for any period on appeal. While the Veteran had some limitation of motion, with the Physical Evaluation Board finding his dorsiflexion limited by 10 degrees, his plantar flexion was 5 degrees over the normal ankle motion; the March 2010 VA examination found normal dorsiflexion and plantar flexion; and the February 2013 VA examination showed dorsiflexion and plantar flexion only limited by 5 degrees. The Board finds that this degree of limitation of motion does not rise to the level of "marked", as required for a 20 percent disability rating under DC 5271. Although the Board has considered the Veteran's subjective complaints and the 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 - with marked problems. Without addressing his symptoms, there would be little basis for the current findings, let alone a higher rating. Indications of the Veteran's mobility, with some limitations, as well as clear indications that this problem does not impact work, as noted above, support this finding. In this regard, it is important for the Veteran to understand that this decision does not ignore his concerns, such as the use of a cane and other issues. However, the objective evidence simple does not indicate marked limitation in this ankle based on extensive evaluation of the condition. This does not suggest, in any way, that the Veteran will not have problems with the ankle, simply that the problem, at this time, does not rise to the level of a marked condition, for the reasons cited above. As noted above, the RO has granted a 10 percent rating 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. 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 an initial disability rating in excess of 10 percent for chronic right ankle strain with scar, residual of surgery, has 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 for chronic right ankle strain with scar, residual of surgery, 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; thus, the Board concludes that the Roberson requirements are not met and that consideration of TDIU is not warranted. 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 claim, a letter dated in February 2010 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. 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 an appropriate VA examination in February 2013. The Veteran has not reported receiving any recent treatment specifically for this condition (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 disorder 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 2013 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 chronic right ankle strain with scar, residual of surgery, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs