Citation Nr: 1318245 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-40 226 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating for left ankle strain, rated 20 percent disabling until March 1, 2010 and 10 percent disabling thereafter, including the propriety of the reduction. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from May 1998 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a December 2009 rating decision issued by the Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) in April 2011. The transcript is associated with the claims file. FINDINGS OF FACT 1. Any improvement in the Veteran's left ankle disorder is not reasonably certain to be maintained under the ordinary conditions of life. 2. Throughout the time period on appeal, the Veteran's left ankle disability was manifested by marked limitation of motion but not ankylosis. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent evaluation for the Veteran's left ankle strain, or for a higher evaluation therefore, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e); 3.321(b), 3.344, 4.7, 4.40. 4.45. 4.59. 4.71a, diagnostic code 5271 (2012). 2. The criteria for an evaluation in excess of 20 percent for the Veteran's left ankle strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.6, 4.7, 4.40, 4.45, 4.71a, diagnostic code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Propriety of Rating Reduction The Veteran contends that her rating for her left ankle strain was improperly reduced from 20 percent to 10 percent effective March 1, 2010. When reducing an assigned rating, notice procedures apply. Generally, when a reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all of the material facts and reasons supporting the proposed reduction. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2012). Here, an October 2009 rating decision proposed reducing the rating of 20 percent to 10 percent. The Veteran was notified on October 26, 2009; she was informed that she had 60 days to submit evidence in opposition to the proposed action. The Veteran was also informed that the proposal was based on the results of the September 2009 VA examination which showed plantar flexion of 0-40 degrees and dorsiflexion of 0-15 degrees, which constituted moderate limitation of motion. The relevant findings of the September 2009 VA examination were set forth. The Veteran was informed that absent marked limitation of motion or ankylosis in plantar flexion less than 30 degrees the criteria for a 20 percent evaluation were not met. No response from the Veteran was received. Thereafter, in December 2009, the RO promulgated a rating decision that reduced the Veteran's rating for her left ankle strain to 10 percent effective March 1, 2010. The notification procedures are thus satisfied. Substantively, a Veteran's disability rating may not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. If a Veteran's disability rating is reduced without following the applicable regulations such reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where an evaluation has been in effect for five years, it is considered a stabilized rating and certain procedures must be followed prior to reducing such a rating. 38 C.F.R. § 3.344(a), (c) (2012). When considering a rating reduction, it is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a); Brown v. Brown, 5 Vet. App. 413, 419 (1993). VA must also consider whether there is an improvement in the Veteran's ability to function under the ordinary conditions of work. Schafrath, 1 Vet. App. at 594; Faust v. West, 13 Vet. App. 342, 349 (2000). Thus, VA is required to consider not only the effect of any improvement in the Veteran's disability on his or her daily life but also specifically on his or her ability to work. Additionally, where a rating reduction is at issue, the burden of proof is on VA to show by a preponderance of the evidence that its action was proper. See Brown, 5 Vet. App. at 421. Here, a 10 percent evaluation was in effect since July 7, 1999. A 20 percent rating for left ankle strain has been in effect since October 14, 2003. Accordingly, when the RO proposed reduction in October 2009, it had been in effect for over five years. The procedures as outlined above must have been followed. At the time of the assignment of the increased evaluation, the Veteran's left ankle strain was evaluated pursuant to 38 C.F.R. § 4.71a, diagnostic code 5271. Pursuant to that diagnostic code a 10 percent rating is assigned for moderate limited motion of the ankle and a 20 percent rating is assigned for marked limitation of motion of the ankle. The Veteran's evaluation was increased to 20 percent based upon a February 2004 VA examination. In that examination, the Veteran stated she took medications, and noted that the pain flares when she does not take the medication. The Veteran reported chronic ankle pain aggravated by prolonged standing, and she wore sneakers to help alleviate the pain. Examination indicated plantar flexion of 0 to 25 degrees and dorsiflexion from 0 to 20 degrees with no evidence of fatigability or incoordination. There was no instability of the ankle. There was pain upon pressure and no callosities. The examiner noted that the Veteran was prone to fluctuations in the severity of her condition, and that it was not possible to predict the amount of future dysfunction. The Veteran was reexamined in April 2005 and her rating was thereafter retained at the 20 percent level. The Veteran reported achy pain, particularly at night, and swelling at nighttime. There was no history of instability. She was taking deflinic acid at bedtime, but did not use a cane, crutch, or other assistive device. She was gainfully employed as a nurse and her activities of daily living are independent. Prolonged walking caused aggravation of the pain. There was no significant history of flares. Upon examination, there was mild swelling, but no instability. Plantar flexion was to 25 degrees and dorsiflexion was to 20 degrees. Upon repetitive use there was no additional loss of range of motion due to pain, fatigue, weakness, or incoordination. Range of motion was limited by pain. Motor testing was 5/5 in all muscle groups and there were no sensory deficits. The impression was sclerotic changes. She was again reexamined in August 2007, and her rating was retained at the 20 percent level. The Veteran reported pain such that she takes Tramadol two to three times daily. She finds this medicine absolutely necessary to alleviate the ankle pain so that she can get on with her ADLs and her job as a registered nurse which is mostly a sit down job. She experienced no flare-ups of the ankle pain and missed no time for work. The examiner noted that x-rays were normal and there were no sclerotic changes of the ankle. Upon examination, there was a normal gait without assistive devices. There was dorsiflexion to 20 degrees and plantar flexion to 45 degrees, which is painless. The range of motion is not additionally limited upon repetition by pain, fatigue, weakness, and/or lack of endurance. She reported she could complete the range of motion due to her medication. However, a likelihood of improvement was noted based on normal range of motion for plantar flexion being shown and the rating decision notified the Veteran that she was subject to a later review examination. A November 2008 VA examination was conducted. The Veteran reported pain of 3/10. She denied weakness, stiffness, fatigability, give-way while walking, and locking. She was currently employed as a nurse. She stated she was able to perform her occupation with limitations. Her condition flares up after walking at work for more than 2 to 3 hours, standing for more than 30 minutes, or assisting in moving a patient weighing in excess of 30 pounds at work. Her ADLs were unaffected. Upon examination dorsiflexion was to 20 degrees, plantar flexion was to 30 degrees, inversion was to 30 degrees, and eversion was to 20 degrees. There was pain on dorsiflexion at 10 degrees, plantar flexion at 20 degrees, inversion at 20 degrees, and eversion at zero degrees. Upon repetition, the ankle was not additionally limited by pain, fatigue, weakness, or lack of endurance. She stated that during flare-ups, the pain was 10/10: alleviating factors were resting, elevating her feet, taking tramadol, soaking her ankles in warm water. She gets flare-ups three times per week and they last for an hour in duration. There was no swelling, tenderness, or crepitation. The Veteran filed a claim for an increased rating for her left ankle disability in July 2009. In connection with her claim, she was scheduled for a VA examination in September 2009. At that time, the Veteran reported pain increased with recurrent episodes of pain every two to three months. She complained of right ankle pain but there was no mention specifically of the left ankle. There were no complaints of weakness, stiffness, swelling, heat, instability, giving way, locking, fatigability, or lack of endurance. There was no tenderness on palpation of the ankles. There was no bony crepitus. Plantar flexion was 0 to 40 degrees and dorsiflexion was 0 to 15 degrees. There was no additional restriction on range of motion due to pain, fatigue, weakness, or lack of endurance during flare ups and following three repetitive range of motion assessments. The Veteran reported that she could not walk on her heels or toes or perform tandem walking. On her feet there were no callosities, breakdown, or unusual shoe wear patterns indicating abnormal weight bearing. X-rays of the ankles and feet were normal. Her gait was steady and she was independent in her activities of daily living. There were no episodes of physician prescribed bed rest over the last year. Procedural requirements having been met, it must then be determined whether the substantive criteria for a rating reduction were met. When she was examined in February 2004 the Veteran was shown to have plantar flexion 0 to 25 degrees and dorsiflexion from 0 to 20 degrees. There was no instability of the ankle joint. Reexamination in April 2005 showed plantar flexion from 0 to 25 degrees and dorsiflexion from 0 to 20 degrees with no additional loss of motion after repetitive use. An August 2007 VA examination showed full range of motion of the ankles; the Veteran told the examiner that she was able to maintain a nice range of motion because she was taking pain medication. At a November 2008 examination the Veteran's range of motion of her left ankle was 0 to 30 degrees of plantar flexion and 0 to 20 degrees of dorsiflexion. The Veteran had pain at 10 degrees of dorsiflexion and 20 degrees of plantar flexion. She had no pain with eversion of the left ankle. She had flare ups with change in temperature, especially cold, rainy, and damp weather, standing for more than a half hour, walking for more than two to three hours, running for more than five to ten minutes, lifting objects in excess of 100 pounds and climbing more than two flights of stairs. In September 2009 she had plantar flexion of 0-40 degrees and dorsiflexion of 0 to 15 degrees with no tenderness on palpation or manipulation of the feet and no additional limitations after repetition. The Board finds that the reduction was improper. Although the September 2009 VA examination showed improved range of motion since the 2004 VA examination, the other examinations in 2005, 2007, and 2008, indicate range of motion roughly the same as the 2004 examination. Additionally, the Veteran had increased her use of medication in order to function. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012) (noting that where effects of medication are not contemplated by the rating criteria, the effects of the medication on the disorder may not be considered). Furthermore, the 2004 VA examiner noted that the disability was prone to fluctuations in severity. The Veteran denied flare-ups in 2004, 2005, and 2007. But in 2008 and 2009 examiantiosn she reported flare-ups. Moreover, in 2008 ranges of motion, her pain began prior to her end range of motion. The Board notes that the 2009 examination did not provide information regarding when the Veteran's pain began. This is evidence that any improvement is due to the medication and indicates that this improvement may not be maintained under the ordinary conditions of life and work. Accordingly, the Board finds that the reduction was improper; restoration is warranted. Increased Evaluation Regarding the claim for an increased evaluation, VA has duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). Notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, the Veteran was sent a letter in July 2009 which explained what the evidence needed to show in order to receive an increased evaluation for her disability and how VA assigns ratings and effective dates for service connected disabilities. The July 2009 letter also explained how VA could assist her with developing evidence in support of her claim. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, written statements from family members of the Veteran, and a transcript of the Veteran's testimony at the April 2011 hearing. The Veteran was provided with adequate VA examinations in furtherance of her claim. These examinations were adequate because they contained a history elicited from the Veteran, were thorough orthopedic examinations, and addressed the relevant rating criteria. Additionally, the Veteran provided testimony at an April 2011 Board hearing. A DRO or VLJ who chairs a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the April 2011 hearing, the AVLJ noted the issue on appeal. Additionally, testimony regarding the nature and severity of the Veteran's ankle disorder was solicited, to include the type and frequency of the symptoms he experiences as a result of such disability. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussions did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the DRO and undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. 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 Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. The Veteran contends that she should receive a higher rating for her left ankle strain, rated 20 percent disabling. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, where effects of medication are not contemplated by the rating criteria, the effects of the medication on the disorder may not be considered. Jones, 26 Vet. App. at 56. Furthermore, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown , 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. In a February 2004 VA examination, the Veteran stated she took medications, and noted that the pain flares when she does not take the medication. The Veteran reported chronic ankle pain aggravated by prolonged standing, and she wore sneakers to help alleviate the pain. Examination indicated plantar flexion of 0 to 25 degrees and dorsiflexion from 0 to 20 degrees with no evidence of fatigability or incoordination. There was no instability of the ankle. There was pain upon pressure and no callosities. The examiner noted that the Veteran was prone to fluctuations in the severity of her condition, and that it was not possible to predict the amount of future dysfunction. The Veteran was reexamined in April 2005. The Veteran reported achy pain, particularly at night, and swelling at nighttime. There was no history of instability. She was taking deflinic acid at bedtime, but did not use a cane, crutch, or other assistive device. She was gainfully employed as a nurse and her activities of daily living are independent. Prolonged walking caused aggravation of the pain. There was no significant history of flares. Upon examination, there was mild swelling, but no instability. Plantar flexion was to 25 degrees and dorsiflexion was to 20 degrees. Upon repetitive use there was no additional loss of range of motion due to pain, fatigue, weakness, or incoordination. Range of motion was limited by pain. Motor testing was 5/5 in all muscle groups and there were no sensory deficits. The impression was sclerotic changes. She was again reexamined in August 2007. The Veteran reported pain such that she takes Tramadol two to three times daily. She finds this medicine absolutely necessary to alleviate the ankle pain so that she can get on with her ADLs and her job as a registered nurse which is mostly a sit down job. She experienced no flare-ups of the ankle pain and missed no time for work. The examiner noted that x-rays were normal and there were no sclerotic changes of the ankle. Upon examination, there was a normal gait without assistive devices. There was dorsiflexion to 20 degrees and plantar flexion to 45 degrees, which is painless. The range of motion is not additionally limited upon repetition by pain, fatigue, weakness, and/or lack of endurance. She reported she could complete the range of motion due to her medication. A November 2008 VA examination was conducted. The Veteran reported pain of 3/10. She denied weakness, stiffness, fatigability, give-way while walking, and locking. She was currently employed as a nurse. She stated she was able to perform her occupation with limitations. Her condition flares up after walking at work for more than 2 to 3 hours, standing for more than 30 minutes, or assisting in moving a patient weighing in excess of 30 pounds at work. Her ADLs were unaffected. Upon examination dorsiflexion was to 20 degrees, plantar flexion was to 30 degrees, inversion was to 30 degrees, and eversion was to 20 degrees. There was pain on dorsiflexion at 10 degrees, plantar flexion at 20 degrees, inversion at 20 degrees, and eversion at zero degrees. Upon repetition, the ankle was not additionally limited by pain, fatigue, weakness, or lack of endurance. She stated that during flare-ups, the pain was 10/10: alleviating factors were resting, elevating her feet, taking tramadol, soaking her ankles in warm water. She gets flare-ups three times per week and they last for an hour in duration. There was no swelling, tenderness, or crepitation. The Veteran was scheduled for a VA examination in September 2009. At that time, the Veteran reported pain increased with recurrent episodes of pain every two to three months. She complained of right ankle pain but there was no mention specifically of the left ankle. There were no complaints of weakness, stiffness, swelling, heat, instability, giving way, locking, fatigability, or lack of endurance. There was no tenderness on palpation of the ankles. There was no bony crepitus. Plantar flexion was 0 to 40 degrees and dorsiflexion was 0 to 15 degrees. There was no additional restriction on range of motion due to pain, fatigue, weakness, or lack of endurance during flare ups and following three repetitive ranges of motion assessments. The Veteran reported that she could not walk on her heels or toes or perform tandem walking. On her feet there were no callosities, breakdown, or unusual shoe wear patterns indicating abnormal weight bearing. X-rays of the ankles and feet were normal. Her gait was steady and she was independent in her activities of daily living. There were no episodes of physician prescribed bed rest over the last year. A written statement from the Veteran's husband related that the Veteran was dependent on pain medication and slept with a pillow under her feet. Her feet swell in the afternoon and she would complain of pain in the afternoon and evening. A written statement from the Veteran's mother related that the Veteran's feet get swollen if she is on her feet all day. She has to rest when she comes home in the afternoon due to ankle pain, which improves after approximately one hour of rest. Hot water also helps. When the Veteran used to work as a nurse she would sometimes come home crying because of the pain and swelling of her ankles. Review of the Veteran's later treatment records reflect that the Veteran no longer worked as a nurse because she failed the registered nurse examination, and not because of her left ankle disability. The Veteran was reexamined in December 2010. At that time, the Veteran reported that she continued to have pain around the lateral and medial ankle and, to a lesser degree, the left heel. She took pain medication for this. She reported that her left ankle was stiff in the morning. There was no locking, fatigability, lack of endurance, redness, or giving way. The Veteran did not use any assistive devices. In the past she received physical therapy which did not help her ankle pain and now was treated with pain medication which lessened the left ankle pain. There was no effect on the Veteran's activities of daily living due to left ankle pain. There was no effect on employment due to left ankle pain; she currently worked in an administrative position. An MRI of the left ankle showed bony fusion involving the posterior facet extending into the middle facet of the subtalar joint, which was interpreted as tarsal coalition consistent with strain. Examination of the left ankle indicated 0 to 30 degrees of plantar flexion with pain at 30 degrees, and 0 to 10 degrees of dorsiflexion with pain at 10 degrees. The diagnosis was left ankle strain. VA treatment records reflect continued bilateral ankle pain. The Veteran testified at a hearing in April 2011. At that time the Veteran reported that she "can't do anything" if she does not take medication for her ankle pain. She used to work as a nurse but was unemployed because she did not have a license from the state. She used to be on her feet all day as a nurse. She sometimes translates for patients and when she does that she comes home with a little pain and her feet are swollen. If she is on her feet all day she comes home with sore feet and she has to rest and take medication. She received injections in her feet which helped temporarily. She was given orthotics but they did not help much. Her medication makes her drowsy. She cannot drive for longer than two hours. If she spends a long time driving she needs to rest when she gets home. She uses a heating pad and soaks her feet. She cannot function on her feet without medication. She gets chills which she believes to be a side effect of her medication. She can exercise for 45 minutes to an hour before the pain gets worse. The Veteran's left ankle disorder is evaluated as 20 percent disabling, which contemplates marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, diagnostic code 5271. This is the maximum evaluation provided for under this diagnostic code. Accordingly, no increased evaluation is warranted. The Board has considered the application of other diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). But there is no impairment of the tibia and fibula, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or an astragalectomy. 38 C.F.R. § 4.71a, diagnostic codes 5262, 5272-74 (2012). Additionally, the evidence of record does not indicate, and the Veteran does not allege, ankylosis of the left ankle. 38 C.F.R. § 4.71, diagnostic code 5270 (2012). These diagnostic codes thus do not provide for increased evaluations. But consideration has also been provided regarding whether there is any additional functional loss not contemplated in the current 20 percent rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 206; Mitchell v. Shinseki, 25 Vet. App. 32, 39-44 (2011). Pursuant to diagnostic code 5270, a 30 percent rating applies for ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating applies for ankylosis in plantar flexion of more than 40 degrees or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Even when considering pain, however, the Veteran's left ankle is does not more closely approximately ankylosis as noted above. Additionally, despite the Veteran's competent and credible lay statements regarding her functional impairment and flare-ups, and her husband and mother's competent and credible lay statements regarding her symptoms, the other evidence of record indicates that there is not additional functional loss. At the February 2004 examination, there was no evidence of fatigability or incoordination. At the 2005 examination, there was no additional loss of range of motion due to pain, fatigue, weakness, or incoordination upon repetitive use. Motor testing was 5/5 in all muscle groups and there were no sensory deficits. In 2007, she experienced no flare-ups of the ankle pain. Examination showed that the range of motion is not additionally limited upon repetition by pain, fatigue, weakness, and/or lack of endurance. In 2008, the Veteran denied weakness, stiffness, fatigability, give-way while walking, and locking. Upon repetition, the ankle was not additionally limited by pain, fatigue, weakness, or lack of endurance. In 2009, there was no additional restriction on range of motion due to pain, fatigue, weakness, or lack of endurance during flare ups and following three repetitive ranges of motion assessments. Finally, in 2010 the Veteran denied locking, fatigability, lack of endurance, redness, or giving way. The Veteran did not use any assistive devices. On the whole, the Board finds that the Veteran's 20 percent evaluation adequate reflects the Veteran's limited range of motion with additional symptoms. No increased evaluation on this basis is warranted. Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluation in this case is not inadequate. A rating in excess of 20 percent is provided for certain manifestations of the service-connected left ankle disability but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder, as the criteria assess range of motion and other functional limitations. Moreover, the evidence does not demonstrate other related factors. The Veteran has not required hospitalization due to service-connected left ankle disorder and marked interference of employment has not been alleged or shown due to the disorder Accordingly, this issue need not be referred for consideration of an extraschedular rating. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER The reduction was improper; restoration of a 20 percent evaluation is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 20 percent for left ankle strain is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs