Citation Nr: 1320394 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-45 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a rating in excess of 40 percent for post-operative fracture of the right lateral malleolus with secondary right foot ganglion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to June 1973. The matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin that denied the claim for an increased evaluation for post-operative fracture of the right lateral malleolus with secondary right foot ganglion. FINDING OF FACT The Veteran's post-operative fracture of the right lateral malleolus with secondary right foot ganglion is currently rated at the maximum applicable rating, 40 percent, and the claims file is devoid of any evidence which would indicate that an extraschedular rating is warranted. CONCLUSION OF LAW The criteria for an increased evaluation for post-operative fracture of the right lateral malleolus with secondary right foot ganglion have not been met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.20, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Codes 5262, 5271(2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The RO provided the Veteran with substantially compliant notice by a letter dated in February 2008. VA also has a duty to assist the Veteran in the development of a claim, which is not abrogated by the granting of service connection. The claims file contains the Veteran's service treatment records (STRs), his VA treatment records, treatment records from the Veteran's private physician, (Dr. T. M.), and statements provided by the Veteran, the Veteran's supervisor (K. J.), and the Veteran's wife (P. R.) A pertinent VA examination/opinion with respect to the issue on appeal was obtained in February 2008. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination obtained here is sufficient, as it considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. VA has met its duty to assist the Veteran with respect to obtaining a VA examination concerning the issue (adjudicated herein) of entitlement to a rating in excess of 40 percent for post-operative fracture of the right lateral malleolus with secondary right foot ganglion. 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent evidence which have not been obtained and associated with the claims folder. II. Legal Criteria Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two ratings should be applied, the higher rating 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. In this case, the Veteran's right ankle disability is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5271-5662. 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 rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that limitation of motion of the ankle is the service-connected disorder, and that a brace is required due to the malunion of the ankle, is a residual condition. An ankle disability is rated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5270, 5271, 5272, 5273, 5274. The highest evaluation available under all pertinent diagnostic codes is 40 percent; therefore, further discussion is not warranted. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). III. Factual Background The Veteran is seeking an increased rating for his right ankle disability due to the limitations it places on his daily life, including his ability to perform the duties of his post-service occupation. See Veteran's VA Form 9. In the Veteran's January 2008 claim, he indicates that he works "five hours a day" and that by the end of his shift he can "barely walk" to his car because of the pain associated with his right ankle disability. The Veteran also asserts that he has difficulty sleeping, performing routine shopping, and exercising due to the pain of his right ankle disability. See Veteran's January 2008 Claim. During a February 2008 VA Examination, the Veteran reported that he has no history of any right foot masses, to include ganglion, and that he was not sure what this refers too. As a result, the Veteran's reported history as it relates to the secondary right foot ganglion is negative. See VA Examination February 2008. The Veteran reported to the VA examiner that he experiences pain of his right ankle at a level of six out of ten upon ambulation. The Veteran had no history of neoplasm, surgery, or instability in the ankle and he denies any flares. The Veteran reported wearing an ankle brace in the past without success. The Veteran also stated that his ankle has no effect on his daily living; however, his ankle caused him discomfort at work and requires frequent breaks. Upon examination of the Veteran, the VA examiner denoted that the Veteran's right ankle "demonstrated no erythema, warmth, swelling, or joint effusion;" his ankle was able to dorsiflex to 15 degrees and plantarflex to 50 degrees. The Veteran's right ankle was able to invert and evert to 40 degrees; upon repetitive testing, his range of motion did not change and was equal to his contralateral, normal side, and was "nonpainful." The Veteran did exhibit mild tenderness along the joint line. The Veteran's right ankle is "ligamentously stable to the anterior drawer and inversion testing." He has full strength, five out of five, and intact sensation throughout the foot and ankle. The VA examiner's inspection of the Veteran's foot demonstrated no ganglion or other mass. The skin is benign with no significant callosities. The Veteran has a "well-maintained arch and normal hindfoot position" and he "ambulates with a normal gate." The VA examiner concluded that "there is no additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination" of the Veteran's ankle. In a February 2008 statement, received by the RO in March 2008, K. J., the Veteran's supervisor, indicated that the Veteran worked at a VA medical facility in a position which required him to "be on his feet for extended periods of time" for a number of years (the exact duration is unspecified). K. J. asserts that he has observed the Veteran "struggle from day to day with this pain. Some days are worse than others but none the less it exists every day, affecting his ability to carry on daily activities." See K. J. February 2008 Statement. Also in March 2009, the RO received a statement from the Veteran's wife, P. R., in which she stated that she, has "been married to the Veteran for 34 years" and that "the pain in his ankle has progressively been getting worse." She also stated that the Veteran "wakes in the middle of the night [and] needs to get up [and] take pain medication." She also describes that his ankle pain causes them to "cut [their] day short" when they are "out and about." She asserts that "this has recently changed both of [their] lives dramatically" and that she is "certain that the increased level of pain in his ankle will require him to retire earlier than he really wants to-or is financially able to." During a podiatry consult at the Madison VA Medical Center, the Veteran reported that he has "bone on bone" at the ankle joint. The Veteran also reported a treatment history of "ankle injections, inserts and ankle braces which give him back pain and NSAIDS which gave him stomach problems." The Veteran also indicated that he was not interested in an injection or surgery as of the time of the podiatry consult. See VA Treatment Records April 2008. In the Veteran's April 2009 notice of disagreement, the he indicated that the risks associated with his diabetes are the reasons that he expressed disinterest in injections and surgical treatment for his right ankle disability in April 2008. In the Veteran's VA Form 9, he asserted that the pain associated with his right ankle disability forced him to retire early from his post service occupation. See VA Form 9. IV. Analysis Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that an increased rating is not warranted. The Board has considered the Veteran's statements and finds that he is both competent and credible in his assertions. Even taking his statements into consideration, however, the Board finds that the preponderance of the evidence demonstrates that the Veteran's symptoms do not warrant an elevated rating. The Veteran is currently rated at 40 percent, which is the highest rating available for an ankle disability, for post-operative fracture of the right lateral malleolus with secondary right foot ganglion. The Board notes the VA examiner's determination that the Veteran does not currently have a secondary right foot ganglion disability in which he is currently service connected and in which the Veteran's own statements, detailed above, corroborate the examiner's conclusion. The discussion above reflects that the symptoms of the Veteran's post-operative fracture of the right lateral malleolus with secondary right foot ganglion disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the right ankle disability is primarily manifested by limitation of motion due to pain. Many of the applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion and instability, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The symptoms of the Veteran's right ankle disability do not include the following: ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion at os calcis or satragalus, nor has the Veteran had an astragalectomy. As a result of the Veteran not exhibiting the proceeding symptomology, separate ratings for the Veteran's ankle disability are not warranted. The effects of the Veteran's diagnosed disabilities have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Further, under the "Amputation Rule," the combined rating for a disability shall not exceed the rating for an amputation at the elected level, were amputation to be performed. See C.F.R. § 4.68. According to 38 C.F.R. § 4.71a, Diagnostic Code 5165, amputation of the right leg, below the knee would warrant a 40 percent rating. The Veteran's post-operative fracture of the right lateral malleolus with secondary right foot ganglion disability is currently rated at 40 percent; therefore, an additional rating would violate the rule. A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Board acknowledges that RO denied the Veteran's claim for TDIU in May 2010. The VA examiner concluded that "there is no additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination" of the Veteran's ankle. The Board also acknowledges that the Veteran is currently retired and asserts that his ankle disability led him to an early retirement. See Veteran's VA Form 9. However, the Veteran has failed to provide evidence that he is unemployable. VA submitted a substantially compliant notice to the Veteran in March 2010 which detailed the requirements for establishing a TDIU claim, including VA Form 21-8940 which assists veterans in detailing their education, technical skills, and employment experience. The Veteran failed to submit VA Form 21-8940 and in an April 2010 signed response, the Veteran indicated that no other information or evidence was available to substantiate his TDIU claim. Hence further consideration of TDIU is not warranted. ORDER Entitlement to a rating in excess of 40 percent for post-operative, fracture, right lateral malleolus with secondary right foot ganglion is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs