Citation Nr: 1318059 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-42 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable rating for left ankle arthritis prior to February 15, 2008. 2. Entitlement to a rating greater than 10 percent for left ankle arthritis since February 15, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from February 1965 to February 1969. The present matter comes to the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. By way of history, in a December 1981 rating decision the Veteran was granted service connection and assigned a noncompensable disability rating for residuals of a left ankle injury. The grant of service connection was effective May 27, 1981. In June 2007, the Veteran sought a higher rating for his left ankle disability. In an October 2007 rating decision, the RO denied the Veteran's claim for a compensable rating for service-connected early traumatic arthritis of the left ankle. Subsequently, in a November 2008 rating decision, the RO assigned a 10 percent disability rating for early traumatic arthritis of the left ankle. The award was effective February 15, 2008. With the above in mind, in a September 2009 Statement of the Case (SOC), the RO phrased the appeal as encompassing two issues. The first issue was noted as being for an evaluation higher than 10 percent for early traumatic arthritis of the left ankle. The second issue was noted as being entitlement to an effective date earlier than February 15, 2008 for the 10 percent evaluation of early traumatic arthritis of the left ankle. In a November 2009 statement associated with his VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran noted that, "The letter I received from the VA states that I am asking for back pay from when the injury to my ankle occurred while I was in the Navy. That is not correct." In light of the Veteran's statement, the RO subsequently identified the second issue listed in the SOC with respect to an earlier effective date as having been withdrawn. As noted above, the 10 percent evaluation awarded at the time of the November 2008 rating decision was not made effective from the date of the Veteran's claim for a higher rating in June 2007. As such, the appeal before the Board involves staged ratings. The Veteran's statement in November 2009, and its clarification as to any earlier effective date for the assigned 10 percent rating, appears to address only that the Veteran was not seeking a 10 percent rating back to the date in service when he injured his left ankle, or to the date of the original grant of service connection for his left ankle disability-May 27, 1981. Therefore, the Board has characterized the issues on appeal as noted on the title page. FINDINGS OF FACT 1. Prior to February 15, 2008 the Veteran's left ankle arthritis has been manifested by dorsiflexion to 20 degrees, plantar flexion to 45 degrees, painless motion, a lack of ligamental laxity or instability, and X-ray evidence of osteophytes in the left ankle. 2. Since February 15, 2008 the Veteran's left ankle arthritis has been manifested by X-ray evidence of degenerative changes of the left ankle, pain, and no more than moderate limitation of motion. CONCLUSIONS OF LAW 1. Prior to February 15, 2008, the criteria for a compensable rating for left ankle arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5271 (2012). 2. Since February 15, 2008, the criteria for a rating higher than 10 percent for left ankle arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the current appeal, a pre-decisional letter dated in August 2007 complied with VA's duty to notify the Veteran of what he needed to substantiate his claim. Specifically, this letter apprised the Veteran of what the evidence needed to show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from him, what evidence VA was responsible for getting, and what information VA would assist in obtaining on his behalf. Additionally, the letter notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Therefore, adequate notice was provided to the Veteran. The Board finds compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist a Veteran in the development of his claim. Here, the Veteran's identified VA treatment records are associated with the physical claims folders and with the Veteran's Virtual VA electronic claims folder. Neither the Veteran nor his representative have otherwise submitted or identified additional medical records (VA or private) that he wishes VA to obtain. The Veteran has also been provided with a number of VA examinations during the course of the appeal period. The reports of examination document the Veteran's symptomatology and contain sufficient evidence by which to evaluate his disability in the context of the rating criteria. As such, the Board finds the VA examinations of record adequate for adjudication purposes. Additionally, the Veteran has submitted arguments in support of his claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. II. Analysis Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left ankle arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5271. Arthritis due to trauma that is substantiated by X-ray findings is rated for degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis (hypertrophic or osteoarthritis) under 38 C.F.R. § 4.71a, Diagnostic Code 5003, established by X-ray findings, is rated on the basis of the limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of min or joints 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. In the absence of limitation of motion, compensable evaluations are warranted for involvement of two or more major or minor joint groups. Id. Limited motion of the ankle is rated under Diagnostic Code 5271. A 10 percent rating is warranted for moderate limitation of motion and a 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion of the ankle is measured as 0-20 degrees of dorsiflexion and 0-45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2012). For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45(f) (2012). The intent of the 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. C.F.R. § 4.59 (2012). By way of history, in a December 1981 rating decision, the RO granted service connection and assigned a noncompensable rating for early traumatic arthritis of the left ankle. (At that time, a private X-ray was noted to reveal small osteophytes in the left ankle, while a VA X-ray did not reveal any such evidence of arthritis.) The Veteran did not appeal the December 1981 rating decision or a subsequent December 1982 rating decision. In June 2007, the Veteran filed a claim for a higher rating for his left ankle disability. Reports of VA examinations dated in August 2007, October 2008, and August 2010 document the Veteran's report of constant pain in the left ankle with standing or walking. An increase in pain in the left ankle has also been associated with an increase in activity. The report of August 2007 examination noted a lack of heat, swelling, and erythema. On repetitive motion testing dorsiflexion of the left ankle was to 20 degrees and plantar flexion was to 45 degrees. There was no pain noted on motion, nor ligmental laxity or instability. The report of October 2008 VA examination noted a lack of heat, swelling, and erythema. On repetitive motion testing dorsiflexion of the left ankle was to 15 degrees and plantar flexion to 20 degrees with endpoint tenderness. The examiner noted a decrease in range of motion of both dorsiflexion and plantar flexion due to muscle guarding and pain. A private hospital MRI (magnetic resonance imaging) of the left ankle in November 2008 revealed distal tibial and talar osteochondritis desicans, old fracture deformity of the medial malleolus, and probable scarring of the extensor digitorum longus tendons within their sheaths. The report of August 2010 VA examination noted the Veteran's complaint of sharp pain in the left ankle with mild stiffness and a feeling of weakness and instability. The examiner reported that the left ankle did not evidence inflammation with redness. Clinical evaluation revealed tenderness laterally over the malleolus. On repetitive motion testing of the left ankle, dorsiflexion was -20 degrees and plantar flexion was reported as 0-20 degrees. The examiner noted a decrease in range of motion of both dorsiflexion and plantar flexion of the left ankle due to pain, but did not find effusion or erythema. An X-ray was reported to reveal mild degenerative change in the medial left ankle. In a July 2011 VA orthopedic surgery note, a clinician, in evaluating the Veteran's left lower extremity, noted the following, I think that the problem in [the Veteran's] ankle is abnormal stresses on the ankle due to the severe varus deformity of the foot. He has to pronate the ankle and foot in order to get the foot flat on the floor. This is most likely where he is stressing his ankle. In a December 2011 VA Disability Benefits Questionnaire (DBQ), the Veteran described flare-ups of left ankle pain three to four times a week and that these lasted for one hour. The Veteran indicated that he was unable to do any running or walking greater than three to four minutes, and he also experienced problems with standing as well as squatting/kneeling. The examiner reported a lack of any plantar flexion or dorsiflexion in the Veteran's left ankle on clinical evaluation. This, it was noted, was consistent with the Veteran's lack of effort coinciding with excessive guarding. Degenerative changes, soft tissue swelling, and widening of the ankle mortise were identified on X-ray. There was no significant change of the Veteran's left ankle radiographically as compared to a radiographic study in August 2007. The Board also notes that the December 2011 examiner checked the box "yes" indicating that functioning of the Veteran's left ankle was so diminished that amputation with a prosthesis would equally serve the Veteran. In explanation, the examiner commented that per the Veteran, the arthritic changes in the left ankle were so severe that all function of the left ankle was gone. The examiner noted that he did not believe this to be the case, as there was a lack of muscular atrophy. The examiner's additional comments included the following, Veteran has no history of ankylosis to ankle joint, therefore ROM is consistent with Veteran effort since there was strong resist[ance] to any movement while checking for instability. He had some ROM during last [VA examination on August 20, 2010]. He was able to ambulate with normal gait with walking cane today. Considering the overall evidence, the Board does not find that a compensable rating for left ankle arthritis prior to February 15, 2008 is warranted. As noted above, the report of August 2007 VA examination reflects full and painless motion, with no ligamental laxity or instability. Even considering the Veteran's complaints of pain, there were no signs or symptoms reflecting painful motion and a basis for a minimal compensable evaluation are not met. Under Diagnostic Code 5003 for degenerative arthritis, without evidence of limitation of motion due to arthritis, a compensable rating is warranted only for arthritic involvement of two or more major or minor joint groups. As noted above, the Veteran's ankle is considered a single major joint group. As such, without evidence of limitation of motion, a compensable rating under Diagnostic Codes 5003 and 5271 is not warranted. The Board also does not find that clinical findings since February 15, 2008 support a rating higher than 10 percent for left ankle arthritis. VA's rating schedule does not define "moderate" or "marked" limitation of motion under Diagnostic Code 5271. It is clear that since February 15, 2008, the evidence reflects that the Veteran has a loss in range of motion of his left ankle. In light of the Veteran's ability to ambulate sufficiently with assistance, as was demonstrated during the December 2011 VA examination, the Board does not find that the evidence more nearly approximates marked limitation of motion of the left ankle, and a 20 percent rating, under Diagnostic Code 5271. In so finding, the Board's consideration has included evaluation of the range of motion findings of the left ankle during the course of the appeal period. Also, there was no range of motion of the left ankle on clinical evaluation in December 2011. In a July 2008 VA treatment record, a clinician noted that the Veteran exhibited marked muscle guarding which inhibited active movement of the left ankle joint. The Veteran's guarding and its affect on his range of motion of his left ankle was also commented on by the December 2011 VA examiner. At that time, the examiner questioned the lack of dorsiflexion or plantar flexion in light of the Veteran's effort during the examination and his ability to ambulate normally with the help of a cane. The Veteran's range of motion in the left ankle went from full and painless in 2008 to no motion and pain in 2011; a dramatic decrease considering no surgery or intervening injury reported during the period. The VA examiner commented on guarding and lack of effort as the cause. The Veteran's ability to ambulate remained intact. Notwithstanding the reported clinical findings, the Board does not find marked limitation of motion has been shown. Additionally, when assessing a claimant's level of musculoskeletal disability, the examiner must express an opinion on whether pain could significantly limit functional ability during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). If feasible, limitations of functional ability should be expressed in terms of additional limitation of motion. Id; see also Mitchell v. Shineski, 25 Vet. App. 32, 44 (2011). The Veteran has reported flare-ups of his left ankle pain with standing, walking, or increased activity. He has reported functional limitations as a result of flare-ups and is noted to use a brace, cane, and medications to alleviate the affects of his disability. In the above noted August 2007, October 2008, and August 2010 VA examinations, the examiners commented that they could not provide an opinion concerning additional limitation of motion of the left ankle during flare-ups without resorting to speculation. A review of the December 2011 DBQ also reflects a lack of comment by the examiner specifically addressing DeLuca, supra. It is apparent that none of the VA examiners witnessed the Veteran during a flare-up of his left ankle disability. The Veteran is competent to describe flare-ups of left ankle disability resulting in additional pain and functional loss (to include range of motion). However, his lack of cooperation during the December 2011 VA examination range of motion testing undermines the Veteran's credibility on this and other descriptions of the manifestations of his ankle disability. Absent an accurate description of severity and frequency of flare-ups by the Veteran, an assessment of the Veteran's functional limitations during flare-ups by VA examiners cannot be provided. There are no reports of flare-ups in the outpatient treatment records. Therefore, notwithstanding the lack of comment by the examiners specifically addressing this DeLuca criteria, a higher rating for left ankle arthritis during the appeal period, based on additional functional limitations during flare-ups, is not warranted. The Board has also considered whether a higher disability rating is warranted based on review of other diagnostic codes associated with the ankle. The Board, however, does not find that the evidence reflects ankylosis of the ankle or ankle joints (Diagnostic Codes 5270 and 5272), malunion of the os calcis or astragalus (Diagnostic Code 5273) or astragalectomy (Diagnostic Code 5274). Consideration has also been given by the Board as to whether the schedular evaluations are inadequate, requiring that the RO refer the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation. Such a referral is warranted where a service-connected disability presents an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this regard, the analysis must include a discussion of whether the rating criteria adequately address all of the claimant's symptomatology. The Veteran's primary symptoms associated with his service-connected left ankle arthritis have been pain and limited range of motion. The rating criteria under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5271 contemplate these symptoms. Thus, while the evidence of record indicates that the Veteran's left ankle disability does have a limiting affect on his everyday activities, especially in light of the noted degenerative changes in the ankle joint, the first step of the Thun analysis, whether the rating criteria adequately address all of the claimant's symptomatology, has been met. As such, the Board's extra-schedular analysis ends, and consideration of the second step-whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization-is not warranted. Therefore, without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture related to his left ankle arthritis requires the assignment of an extra-schedular rating is not warranted. 38 C.F.R. § 3.321(b)(1); Thun, supra. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not specifically raised the issue of entitlement to a TDIU as a result of his left ankle disability. See 38 C.F.R. § 4.16. In the event that there is anything in the record that implicitly raises a claim of TDIU, review of the overall evidence does not reflect that the Veteran's service-connected left ankle disability alone precludes employment. The Veteran reported that he retired several years earlier on VA examination in 2010. There is no suggestion in the record that he is unemployable due to his left ankle disability. Thus, entitlement to a TDIU due to his service-connected left ankle is not warranted. For all the foregoing reasons, the Board finds that the criteria for a compensable rating prior to February 15, 2008 for left ankle arthritis have not been met. Also, the criteria for a rating in excess of 10 percent since February 15, 2008 for left ankle arthritis have also not been met. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the (CONTINUED ON NEXT PAGE) preponderance of the evidence is against the Veteran's claims for higher ratings, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a compensable rating for left ankle arthritis prior to February 15, 2008 is denied. Entitlement to a rating in excess of 10 percent for left ankle arthritis since February 15, 2008 is denied ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs