Citation Nr: 1318334 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-43 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to higher initial ratings for a right ankle disability, rated as 10 percent disabling prior to August 31, 2012 and as 20 percent disabling from that date. ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to June 2007. He was awarded the Combat Infantryman's Badge (CIB) for his service in the Persian Gulf. This case came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that granted service connection for a right ankle disability and assigned a noncompensable evaluation. A rating action in October 2009 awarded a 10 percent evaluation effective June 29, 2007. The Veteran's appeal was before the Board in August 2012, at which time various claims of entitlement to service connection were denied. The Board remanded the issues of entitlement to service connection for headaches and entitlement to a higher initial rating for the right ankle disability. While the appeal was in remand status, the agency of original jurisdiction (AOJ) granted service connection for headaches. Thus, that issue is no longer in appellate status. FINDINGS OF FACT 1. For the period prior to August 31, 2012, the right ankle disability was manifested by no more than moderate limitation of motion. 2. For the period from August 31, 2012, the right ankle disability is manifested by marked limitation of motion, without objective evidence of ankylosis, ankle deformity, nonunion of the tibia and fibula, or malunion of the ankle. CONCLUSIONS OF LAW 1. For the period prior to August 31, 2012, the criteria for an initial evaluation in excess of 10 percent for the right ankle disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2012). 2. For the period from August 31, 2012, the criteria for an initial evaluation in excess of 20 percent have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (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 and 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in July 2007 discussed the evidence necessary to support a claim for service connection. The evidence of record was discussed, and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was advised of the manner in which VA determines disability ratings and effective dates. In August 2012 the Veteran was advised of the status of his claim. The Board finds that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. The Board notes that this is a case in which the Veteran is challenging the initial evaluation assigned following the grant of service connection for his low back disability. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. With respect to VA's duty to assist, service treatment records and VA treatment records have been obtained and associated with the record. VA examinations were conducted. The Board finds that the examinations were adequate in that they were conducted by neutral, skilled providers who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations prior to providing their conclusions. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether further staged ratings are warranted. However, it has determined that the disability is appropriately rated and that no further staging of ratings is necessary. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §4.10 (2012). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. On VA general medical examination in August 2007, the Veteran reported that he fell in Iraq but did not receive treatment until two days later. He noted that at that time, his ankle was swollen. He stated that his ankle got better over a couple of weeks but that he was still actively using it, and it never completely healed. He endorsed pain with walking up and down stairs and stated that he could not really push off on the right ankle. He noted that he could no longer run like he used to, and that as a squad leader he was unable to carry heavy objects. He endorsed giving way, weakness, and instability of the right ankle. The examiner indicated that an assistive aid was not used for walking. The Veteran stated that he had severe flare-ups and estimated that he lost 80 to 90 percent of function during flares. On physical examination, the Veteran's gait was normal. Range of motion testing revealed dorsiflexion to 20 degrees with pain beginning at 20 degrees, and plantar flexion to 45 degrees without pain. The examiner noted that passive motion was the same as active, and that there was no additional limitation of motion on repetitive use. X-rays were negative. Assessment by a VA provider in September 2008 indicates free range of motion of the right ankle. In October 2008 the Veteran was seen at a VA facility complaining of right ankle pain for several years. He requested an MRI. The provider noted that X-ray showed no osseous abnormality. The Veteran again complained of right ankle pain in February 2009. When examined by a VA physician, free range of motion and no swelling were recorded. In July 2009 the Veteran requested a right ankle brace; it appears that this item was issued in August 2009. In October 2009 the Veteran reported severe right ankle pain and stated that it was swelling over the previous weekend. On VA examination in August 2012, the Veteran's history was reviewed. Range of motion testing revealed plantar flexion to 10 degrees, with pain at 5 degrees; and dorsiflexion to 5 degrees with pain at 5 degrees. Pain and range of motion were unchanged following repetitive use testing. Functionally, the examiner noted less movement than normal, weakened movement, incoordination, pain on movement, swelling, and disturbance of locomotion. A mild degree of chronic swelling or deformity was appreciated about the right lateral malleolus with some tenderness to varus stress and palpation. Measurement of the calves showed relative atrophy for someone right handed, with the right calf measuring 39.5 cm and the left measuring 40.5 cm. The examiner noted that the Veteran used a brace and cane on a regular basis. He also noted that the Veteran had difficulty with stairs and had little force to his step-off. He indicated that the Veteran tried to limit walks to less than 200 yards and had stopped running. The Veteran's right ankle disability is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under those criteria, limitation of motion of the ankle is rated as 10 percent disabling when moderate and as 20 percent disabling when marked. Ankylosis of the ankle in plantar flexion at less than 30 degrees warrants a 20 percent rating. A 30 percent rating is warranted if the ankylosis is in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted if there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Normal range of ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. Nonunion of the tibia and fibula, with loose motion and requiring a brace warrants a 40 percent rating. Where there is malunion and marked knee or ankle disability, a 30 percent rating is warranted. Malunion with moderate knee or ankle disability warrants a 20 percent evaluation; with slight knee or ankle disability, a 10 percent evaluation is for application. 38 C.F.R. § 4.71a, Diagnostic Code 5262. For the period prior to August 31, 2012, the Board has determined that the currently assigned 10 percent evaluation is appropriate. In that regard, the evidence pertaining to that period reflects that while the Veteran complained of pain and difficulty negotiating steps, he had a normal gait and full range of motion with pain only at the end of the range. Free range of motion is also reflected in assessments by VA providers in September 2008 and February 2009. Because the objective evidence for this period does not reflect limitation of motion that could be objectively characterized as approximating marked limitation, the Board concludes that a higher evaluation is not for application. For the period from August 31, 2012, the Board has determined that the current 20 percent evaluation is appropriate. VA examination in August 2012 revealed marked limitation of motion, with pain at 5 degrees of plantar flexion and at 5 degrees of dorsiflexion. However, there is no evidence of ankylosis that would allow for a higher evaluation under Diagnostic Code 5270, and no indication of nonunion or malunion which would allow application of Diagnostic Code 5262. As such, the objective evidence demonstrates marked limitation of motion of the ankle that is appropriately evaluated as 20 percent disabling. The Board accepts that the Veteran has experienced functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion required to warrant higher evaluations for the periods considered. The Board therefore finds that the currently assigned evaluations are appropriate for the Veteran's right ankle disability. The Board notes that the Veteran is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluations for the Veteran's right ankle disability are appropriate. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extraschedular Consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veterans entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected right ankle disability. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate rating criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. ORDER For the period prior to August 31, 2012, an initial evaluation in excess of 10 percent for a right ankle disability is denied. For the period from August 31, 2012, an initial evaluation in excess of 20 percent for a right ankle disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs