Citation Nr: 1319912 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 12-01 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability rating in excess of 20 percent for residuals of right ankle fracture with arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran had active duty for training from July 16 to July 30, 1960, with continuous active service for treatment purposes thereafter to March 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the case was subsequently transferred to the RO in Atlanta, Georgia. The Veteran requested a Board hearing by videoconference from the RO in his January 2012 substantive appeal (VA Form 9). In an August 2012 report of contact memorandum, his representative indicated that the Veteran instructed that his file be forwarded to the Board for a decision, despite being informed at that time of the pending hearing request. The Veteran has not submitted a request for another Board hearing since that time. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2012). The Board notes that the Veteran provided a private treatment record to the RO in March 2012 after the issuance of the statement of the case (SOC) and prior to transfer of the record to the Board. A review of this submission shows the Veteran's ongoing complaints of pain due to arthritis, including in the right foot, for which he took medication, facts that were previously established in the record as reviewed. As this evidence is not pertinent to the issue on appeal (i.e., does not have a bearing on the outcome of the appellate issue), a remand for review of this record by the RO in the first instance, including issuance of an SSOC, is not necessary. 38 C.F.R. §§ 19.31, 19.37. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the appeal period, the Veteran's residuals of right ankle fracture with arthritis have been productive of marked limitation of motion, but not ankylosis, malunion of the os calcis or astragalus, or astragalectomy. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals of right ankle fracture with arthritis have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and medical or lay 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran was provided all required VCAA notice in a pre-rating June 2009 letter, to include with respect to the disability rating and effect date elements of his claim. The VCAA also requires VA to 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. The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. The Board notes that the Veteran submitted the names of two private physicians on one completed authorization and consent form (VA Form 21-4142) attached to his current claim for increase. In a November 2011 letter, the RO informed the Veteran that this form was expired and requested that he complete and return a new form or obtain the information himself. A review of the record indicates that the Veteran did not respond to this letter, to include as of the date of the issuance of the SOC. Accordingly, the Board finds that VA has fulfilled its duty to assist in this regard. The Veteran's written statements are of record. The Veteran was also afforded an opportunity to present testimony at a hearing before the Board, but the record reflects that he withdrew his hearing request. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded appropriate VA examinations in connection with his claim. The Board finds that the examinations were adequate, in that the exams were conducted by medical professionals who solicited history from the Veteran and performed thorough examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board does observe that it is unclear if the VA examiners reviewed the claims file; however, they did review the Veteran's own reported medical history and complaints and performed a physical examination that addressed all of the rating criteria. Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles and Analysis Disability ratings are determined by application of the criteria in the VA Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history, and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where, as here, 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). Separate ("staged") ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, as explained below, a uniform rating is warranted. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to a higher rating for his service-connected residuals of right ankle fracture with arthritis, which is currently assigned a 20 percent rating from May 12, 2006 pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 for traumatic arthritis indicates that the disorder is rated as degenerative arthritis. In this case, that rating is based on the limitation of motion of the affected part, the right ankle. See Diagnostic Codes 5003, 5271. Under Diagnostic Code 5271, a 20 percent rating is warranted for marked limitation of motion of the ankle. This is the maximum schedular rating under this diagnostic code. The Board must also consider, however, all other potentially applicable diagnostic codes. Schafrath, 1 Vet. App. at 593. Under Diagnostic Code 5270, a 20 percent evaluation is assigned for ankylosis of the ankle in plantar flexion less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent rating is warranted for 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. For VA compensation purposes, the normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. In addition, the words "mild," "moderate," and "severe" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The other diagnostic codes applicable to the ankle, 5272 through 5274, applicable to ankylosis of subastragalar or tarsal joint, malunion of os calcis or astragalus, and astragalectomy, also provide for maximum 20 percent ratings. In addition, when evaluating musculoskeletal disabilities, consideration is given to additional functional loss experienced due to pain, weakness, excess fatigability, and incoordination, to include with repetitive use or during flare-ups, as these factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes based on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). Historically, the Veteran has complained of chronic problems in his right ankle, to include pain and swelling due to arthritis, since fracturing it during active service in 1960. At that time, he underwent open reduction with screw and pin fixation. In his June 2009 claim, the Veteran stated that his right ankle disability had increased significantly in severity, to include constant arthritic pain and inability to perform many duties related to his occupation. The Veteran was afforded a VA examination in August 2009, during which he complained of symptoms including weakness, stiffness, swelling, lack of endurance, tenderness, and pain. He took ibuprofen daily and denied a history of hospitalization or surgery. He reported flare-ups as often as three times per month, precipitated by physical activity, alleviated with ibuprofen; during flare-ups, he reported pain when trying to walk and limitation of motion of the joint. He reported that he was unable to work in his chosen profession of auto sales due to pain from extended walking and standing. On physical examination, range of motion was full on both dorsiflexion and plantar flexion, with pain but no other additional functional loss after repetitive motion. The right ankle had no signs of abnormal movement, weakness, deformity, or malalignment. There was no sign of abnormal weight-bearing on the feet. Two linear, deep scars were noted on the right ankle, each measuring 2 centimeters by 0.2 centimeters, not painful on examination, with no skin breakdown or resulting limitation of function. The diagnosis remained right ankle fracture with arthritis, with functional impact noted as difficulty walking long distances. In an August 2009 written statement, the Veteran's friend indicated that the Veteran complained of pain and had become less capable of walking and putting weight on his right foot in the recent months. He also observed that the Veteran could not stand for any length of time as he was able to in the past. In his May 2010 notice of disagreement, the Veteran noted that he had more pain than he did five years prior. The Veteran was afforded another VA examination in November 2011, during which he complained of symptoms including weakness, stiffness, swelling, giving way, lack of endurance, and pain. He took a meloxicam for both back and ankle pain and denied a history of hospitalization or surgery. He reported experiencing flare-ups. On physical examination, range of motion was dorsiflexion to 15 degrees and plantar flexion to 45 degrees, with no evidence of painful motion. On repetitive motion, dorsiflexion was to 15 degrees and plantar flexion to 35 degrees, with functional loss noted as swelling of the right ankle. There was pain on palpation, but no ankylosis, or a history or current finding of malunion of the calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy). Scars were noted as related to the right ankle; however, the scars were not painful and/or unstable, or of a total area greater than 39 square centimeters (6 square inches). The diagnosis remained right ankle fracture with arthritis. In his January 2012 substantive appeal (VA Form 9), the Veteran stated that the doctors treating his original injury told him that he would develop arthritis in the area which would become more serious as he aged. He also reported that the most recent VA examiner told him that his mobility had decreased since his last appointment, which he indicated that he believed as well. A March 2012 written submission from a private physician states that the Veteran experienced pain and discomfort from generalized arthritis, with the worst pain in the right foot and ankle. He indicated that the Veteran was on daily meloxicam to help control arthritis pain and discomfort. Based on the above evidence, the Board finds that a rating in excess of 20 percent for the Veteran's right ankle disability is not warranted. As a preliminary matter, the evidence does not reflect that the Veteran has ankylosis of subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy. In addition, the Rating Schedule generally prohibits pyramiding (i.e., evaluating the same disability under different diagnostic codes), and the Court has held that pyramiding is disfavored "unless the regulation expressly provides otherwise." Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); 38 C.F.R. § 4.14. The Board notes the Veteran's primary contention for an increase in the right ankle disability on the basis of consideration of the post-fracture residuals, to include arthritis and resulting pain. These residuals have been contemplated in the current 20 percent rating assigned under Diagnostic Code 5271. Indeed, the hyphenated diagnostic code under which the Veteran is rated instructs that the rating be determined as degenerative arthritis based on limitation of motion. As such, the remaining consideration is whether the Veteran is entitled to a higher schedular rating under Diagnostic Code 5270, the only provision for rating the ankle higher than 20 percent. In this regard, the record does not reflect, and the Veteran does not contend, that he has ankylosis of the ankle. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Based on the aforementioned range of motion findings, the record shows that the Veteran's right ankle is not fixated or immobile; the November 2011 VA examiner specifically noted that there was no ankylosis. While the noted ranges of motion were limited by pain at times, these findings are consistent with and fully contemplated by the 20 percent rating currently assigned. Moreover, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the regulations pertaining to functional loss due to pain, weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, painful motion with joint or peri-articular pathology, and actually painful, unstable, or malaligned joints, due to healed injury (i.e., 38 C.F.R. §§ 4.40 , 4.45, and 4.59) are not for application. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). In sum, there is no basis for a higher rating under Diagnostic Code 5270. In addition, the Board notes that it considered whether the Veteran was entitled to a separate rating for the residual surgical scars noted on the VA examination reports, currently evaluated as noncompensable residuals of the right ankle disability. However, as the evidence of record reflects that the scars are linear, under a certain size, stable, not painful, and not productive of other disabling effects, the Board finds that a separate rating in this regard is not warranted. See Schafrath, 1 Vet. App. at 593; 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. The Board notes that it has also considered the lay evidence of record, to include the Veteran's reports during VA examinations and his written submissions, in deciding this case. The Veteran is competent to report as to the symptoms he experiences and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, even affording this lay evidence full competence and credibility, such evidence does not support a rating higher than the one currently assigned. Thus, on this record, the Board concludes that the weight of the evidence is against the Veteran's claim for a rating in excess of 20 percent for the service-connected right ankle disability. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. at 53. Consideration has also been given regarding whether the schedular evaluation in this case 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); 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 disability, but the evidence reflects that those manifestations are not present in this case. The current rating also contemplates the Veteran's primary complaints of pain and swelling due to residual arthritis, as discussed above. Accordingly, this issue need not be referred for consideration of an extraschedular rating. ORDER Entitlement to a disability rating in excess of 20 percent for residuals of right ankle fracture with arthritis is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs