Citation Nr: 1320957 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-25 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to April 12, 2011, for status post right ankle injury with residual deformity and degenerative joint disease. 2. Entitlement to a disability rating in excess of 20 percent from April 12, 2011, for status post right ankle injury with residual deformity and degenerative joint disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued a previously assigned 10 percent rating for a right ankle disability. In March 2011, the Board remanded the claim for further development. In an August 2011 rating decision, the Appeals Management Center (AMC) increased the rating for the right ankle disability to 20 percent, effective April 12, 2011. After appropriate action, the matter was returned to the Board. Subsequently, the Board remanded the claim in November 2011 for clarification of the April 2011 VA examination. After accomplishing further action, the AMC denied the claim for an increased rating and returned the matter to the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. While additional VA treatment records have been added to the Veteran's Virtual VA file, these records do not provide additional information pertinent to his ankle disability. Hence, remand for RO consideration in the first instance is not necessary. 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. Prior to April 12, 2011, the Veteran's right ankle disability was manifested by pain and moderate limitation of motion. 2. As of April 12, 2011, the Veteran's right ankle disability has been productive of marked limitation of motion but is not productive of any degree of ankylosis. CONCLUSIONS OF LAW 1. Prior to April 12, 2011, the criteria for a disability rating in excess of 10 percent, for status post right ankle injury with residual deformity and degenerative joint disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5270, 5271 (2012). 2. The criteria for establishing entitlement to a disability rating in excess of 20 percent as of April 12, 2011, for status post right ankle injury with residual deformity and degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5270, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The Veteran was provided VCAA notice in October 2005, February 2007, and June 2008 letters. These letters collectively advised the Veteran of what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The 2007 letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. The letter further advised the Veteran of how effective dates are assigned, and the type of evidence which impacts that determination. VA also has a duty to assist the Veteran in the development of the claim. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA treatment records, and VA examination reports. The Veteran has not indicated that there are any additional records that VA should seek to obtain on his behalf. This case was remanded by the Board in March 2011 and November 2011 for additional development, to include obtaining VA treatment records, providing a VA examination and obtaining a clarification of the VA examination. These directives have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Id. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's right ankle condition is currently evaluated pursuant to Diagnostic Code 5271. 38 C.F. R. § 4.71a. Under this Diagnostic Code, a 10 percent rating is warranted for moderate limitation of ankle motion, and a 20 percent rating is assigned for marked limitation. The normal range of ankle motion is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Words such as "moderate" and "marked" 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. A 40 percent evaluation may be assigned 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. A 30 percent rating is assignable for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. A 20 percent rating may be assigned for ankylosis in plantar flexion, less than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2012). The Veteran seeks a higher evaluation for his service-connected status post right ankle injury with residual deformity and degenerative joint disease. His disability is evaluated as 10 percent disabling prior to April 12, 2011, and as 20 percent disabling thereafter. The Veteran underwent a VA examination in October 2005. The Veteran indicated that he suffered from chronic pain and stiffness. The examiner noted that prolonged weight bearing activity aggravated his condition and the Veteran wore a brace for support. The Veteran reported pain at 2-3/10, which would increase to 8-9/10 with prolonged weight bearing activity. The examiner noted tenderness to palpation and swelling along the dorsal, lateral and medial aspects. Upon examination, the Veteran's right ankle dorsiflexion was limited to 15 degrees and plantar flexion was limited to 20 degrees. After repetitive use, the Veteran's range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination. The examiner indicated no neurovascular deficits. The examiner noted the Veteran to have an inversion deformity, but that there was no evidence of ankylosis. At the April 2011 VA examination, the Veteran indicated that he suffered from pain, weakness and instability. He reported weekly flare-ups after spending too much time on his feet. The examiner noted that the Veteran walked with an antalgic gait. Upon examination, the examiner noted that there was tenderness to palpation over the Achilles tendon, but there was no ankle instability or tendon abnormality. There was no objective evidence of pain following repetitive motion and no additional limitation after repetitive range of motion. The examiner found no evidence of joint anklyosis. The Veteran stated that there was pain on any motion of his right ankle. The strength test revealed 4/5 in plantarflexion, inversion and eversion and 3/5 in dorsiflexion. In November 2011, the Board remanded for clarification of the April 2011 examination. The examiner provided an addendum that same month. The examiner reported, after review of the examination results and corresponding notes taken, that the Veteran's dorsiflexion was found to be -10 degrees. The examiner explained that the Veteran held his ankle fixed at 10 degrees of plantarflexion and could not dorsiflex the foot. However, the examiner noted that he suspected poor effort on the part of the Veteran because his range of motion was not consistent with the Veteran's medical history for his ankle. The examiner indicated that the limitations appeared to be effort-related more so than biologically related. In addition, the examiner reported that the Veteran's plantar flexion was 10 to 25 degrees. It was noted that subtalar joint fusion, associated with osteoarthritis, was only involved in inversion and eversion. The examiner also reported that the Veteran's right ankle is not anklyosed. A. Evaluation Prior to April 12, 2011 Based on the evidence of record, the Board finds that the Veteran's disability picture, prior to April 12, 2011, most closely approximates a 10 percent disability evaluation. While limitation of motion and pain were noted on the October 2005 examination, the results did not produce a marked impairment of the Veteran's right ankle. Indeed, the Veteran had 15 out of 20 degrees of dorsiflexion and 20 out of 45 degrees plantar flexion. The Board finds such limitation is consistent with moderate, rather than marked, limitation of motion. Moreover, after repetitive use, the Veteran was not additionally limited by pain, fatigue or weakness. The examiner reported that the Veteran was ambulatory without an assistive device, although did use an ankle brace. The examiner specifically noted that the Veteran's right ankle was not ankylosed. VA treatment records during the course of the appeal noted complaints of pain in the right ankle, but do not reflect findings consistent with more than moderate limitation of motion prior to April 12, 2011, or with ankylosis of the ankle since that date. Indeed, in a February 2008 treatment record pertaining to diabetes, it was noted that the Veteran's exercise consisted of playing basketball once a month. A January 2008 VA examination for his back noted his gait was normal. The Board finds the Veteran's right ankle disability is most appropriately rated based on arthritis and limitation of motion under Diagnostic Codes 5010 and 5271 and that he does not suffer from ankylosis. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his right ankle disability during the period prior to April 12, 2011. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent during this period. B. Evaluation From April 12, 2011 After a review of all the evidence of record, the Board finds that a rating in excess of 20 percent since April 12, 2011, is not warranted. The Board notes that Diagnostic Code 5271 provides a maximum 20 percent rating for marked limitation of motion of the ankle. In order to warrant a rating greater than 20 percent for his ankle impairment, the evidence must show ankylosis of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Here, the VA examiner, in the April 2011 examination report and the November 2011 addendum noted the Veteran does not have ankylosis in the right ankle. Specifically, in the April 2011 examination report, the examiner noted the Veteran held his foot in 10 degrees of plantar flexion, but that the ankle was not ankylosed. He noted the Veteran ambulated with an exaggerated limp, and that the limitation of motion the Veteran was showing was not consistent with his disability picture. Moreover, the examiner noted poor effort on the Veteran's part with strength testing. On the November 2011 addendum, the examiner explained in greater detail that the Veteran's range of motion effort level was suspect and that his limited range of motion was not consistent with certain parts of the Veteran's history, including that he walks regularly for exercise and observations such as being able to sit with his foot flat on the floor in a 0 degree neutral position. The examiner further noted the Veteran was not observed as holding his foot in 10 degrees of plantar flexion at all times. In the absence of a finding of ankylosis of the ankle, there is no basis for the assignment of a higher rating under Diagnostic Code 5270. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim. C. Other Considerations The Board has considered the Veteran's statements with regard to the severity of his service-connected disability currently on appeal. In this regard, the Veteran is competent to report on factual matters of which they had firsthand knowledge, e.g., experiencing pain and weakness, or witnessing difficulty with movement. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence was provided by the Veteran during the course of his appeal and during his VA examinations. The Board notes, however, that the April 2011 found the Veteran's effort level to be poor in range of motion and strength testing, that he ambulated with an exaggerated limp, and that a report of walking for exercise was inconsistent with his presentation at the examination. Moreover, the Board notes that during the course of the claim the Veteran reported that his exercise included basketball at times. In short, the Board finds the reliability of the Veteran's report of the severity of his symptoms to be unreliable. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his right ankle disability. After a careful review of the evidence of record, that the Veteran's right ankle disability does not warrant a rating in excess of 10 percent for the period prior to April 12, 2011, or in excess of 20 percent thereafter. The Board has also considered other diagnostic codes relevant to the Veteran's right ankle disability; however, during the pendency of the claim, none of the competent medical evidence of record shows that the Veteran has ankylosis or malunion such that other codes would be applicable. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5273, 5274 (2012). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's right ankle disability. While the Veteran's service-connected disability produces pain and limitation of motion, those manifestations are contemplated in the rating criteria. The Board finds that the symptoms associated with the Veteran's service-connected disability are adequately addressed by the applicable rating criteria. Further, the effects of pain and functional impairment have been taken into account and were 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 rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. As a final matter, the Board notes the Veteran reported to the VA examiner that he is not presently employed. However, he reported that he was unemployed due to placed on insulin for diabetes rendering him unable to continue in his prior occupation as a truck driver. Accordingly, no further action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is required. ORDER Entitlement to a disability rating in excess of 10 percent prior to April 12, 2011, for status post right ankle injury with residual deformity and degenerative joint disease, is denied. Entitlement to a disability rating in excess of 20 percent effective April 12, 2011, for status post right ankle injury with residual deformity and degenerative joint disease is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs