Citation Nr: 1322434	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  09-20 092	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of right ankle fracture with arthralgia.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel



INTRODUCTION

The Veteran served on active duty from January 22, 1987 to May 28, 1987.  

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2008 rating decision in which the RO granted service connection for residuals of right ankle fracture with arthralgia, and assigned an initial, noncompensable rating, effective May 7, 2008.  In December 2008, the Veteran filed a notice of disagreement (NOD) with the assigned rating.  A statement of the case (SOC) was issued in April 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2009.

In a April 2009 rating decision (issued in May 2009), the RO granted a 10 percent rating for service-connected residuals of right ankle fracture with arthralgia, effective May 7, 2008.  

Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for residuals of right ankle fracture with arthralgia, the Board characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability).  Moreover, although the RO has granted a higher, 10 percent rating during the pendency of the appeal, inasmuch as higher ratings for this disability are available and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal.  See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993).


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished.

2.  Since the May 2008 effective date of the award of service, the Veteran's right ankle disability has been manifested by subjective complaints of constant pain, throbbing, stiffness, and limited mobility, and objective evidence of pain and discomfort on standing and on eversion, with a demonstrated pain flare up on repetitive motion; however, there has been no objective evidence of swelling, effusion, or deformity in the right ankle joint, limited or painful dorsiflexion, or plantar flexion, or other significant findings.  

3.  The applicable schedular criteria have been adequate to evaluate the disability under consideration at all pertinent points.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for residuals of right ankle fracture with arthralgia are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7,4.29, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).  

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). 

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. 

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  

VCAA-compliant 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, to include the AMC).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.  

In this appeal, in a June 2008 letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate what was then a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  The November 2008 RO rating decision reflects the initial adjudication of the claim after issuance of the June 2008 letter.  

After the award of service connection, and the Veteran's disagreement with the initial rating assigned, no additional notice letter for the downstream higher rating issue was required (see 38 U.S.C.A. § 5103A  and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004)).  However, a December 2008 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.  After issuance of the December 2008 letter, and opportunity for the Veteran to respond, the April 2009 SOC reflects readjudication of the claims.  Hence, the Veteran is not shown to be prejudiced by the timing of this notice.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).  The Board also notes that the April 2009 SOC set forth the applicable rating principles and criteria for the right ankle for the right ankle (the timing and form of which suffices, in part, for Dingess/Hartman).  

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  Pertinent medical evidence associated with the claims file consists primarily of the report of VA examination conducted in September 2008.  Also of record and considered in connection with the appeal are various written statements  The Board finds that no additional RO action to further develop the record in connection with the claim on appeal, prior to appellate consideration, is required.

The Board points out that the Veteran has not alleged worsening of his right ankle disability since the September 2008 VA examination and the record does not, otherwise, establish worsening of the disability.  As such, a remand to obtain a more recent examination is not required.  Moreover, the Veteran has not identified any additional, outstanding evidence needed to evaluate this claim, including treatment records from VA, other Federal agencies, or private health care providers.  The Board has received the Veteran's paperless, electronic (Virtual VA) file; however, a July 2013 review of Virtual VA does not reveal any additional documents pertinent to the present appeal that have not been associated with the paper claims file.  Hence, no further RO action in this regard is, likewise, required.

In summary, the duties imposed by the VCAA have been considered and satisfied.  Through various RO notices, the Veteran has been notified and made aware of the evidence needed to substantiate the claim on appeal, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). 

II.  Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings shall 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  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).  However, where, as here, the question for consideration is entitlement to a higher initial rating assigned following the award of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson, 12 Vet. App. at 126. 

Historically, by rating decision of November 2008, the RO granted service connection for residuals of right ankle fracture with arthralgia, and assigned an initial, zero percent (noncompensable) rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5271, effective May 7, 2008.  In an April 2009 rating decision (issued in May 2009), the RO assigned a 10 percent rating under the provisions of 38 C.F.R. § 4.71a, DC 5271-5024, effective May 7, 2008. 

Given the effective date of the award, the 10 percent rating is now the initial rating assigned.  Moreover, in this case, use of the hyphenated diagnostic codes indicates that the RO rated the Veteran's non-listed disability (essentially, arthralgia) first by analogy to degenerative arthritis (DC 5003), then by analogy to tensosynovitis (DC 5024); regardless, however, in each instance, the disability was rated on the basis of limitation of motion of the ankle (DC 5271).  See 38 C.F.R. §§ 4.20, 4.27. 

Diagnostic Code 5271 provides that limited motion of the ankle warrants a 10 percent rating if moderate and a 20 percent rating if marked.  See 38 C.F.R. § 4.71a, DC 5271.  Normal range of ankle dorsiflexion is from zero to 20 degrees, and plantar flexion from zero to 45 degrees.  See 38 C.F.R. § 4.71, Plate II.

The terms "slight," "moderate," and "marked" are not defined in the 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," and all evidence must be evaluated in deciding rating claims.  38 C.F.R. § 4.6.

The Board also points out, that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).  

The Veteran has asserted that his residual right ankle disability is manifested by constant pain, throbbing, stiffness, and limited mobility.  See statements received June and December 2008.  The Veteran reported that he went to a Veterans Hospital in April 2008 but he was told to file a claim for benefits, as they could not help him.  The Veteran has not identified or submitted any treatment records (either from VA or private health care providers) that are relevant to this claim and, as such, the evidentiary record does not contain any treatment records relevant to the right ankle claim on appeal.  Indeed, the pertinent evidence in this case consists only of the report of a September 2008 VA examination and statements by the Veteran and his representative, on his behalf.  

During the September 2008 VA examination, the Veteran reported experiencing pain, stiffness, and achiness in his right ankle on a daily basis.  On a scale of one to ten, the Veteran reported that his pain is a seven but can flare-up to an eight or nine.  He reported that his pain is precipitated by being on his feet and cold, damp weather changes but is alleviated by getting off his feet.  The examiner noted the Veteran was not on medication for his residual right ankle disability and that he has never required physical therapy or assistive devices.  

On examination, the Veteran was able to demonstrate dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees.  He was also able to demonstrate inversion to 35 degrees and eversion to 20 degrees, but he complained of discomfort while demonstrating eversion standing on his feet.  The examiner noted that repetitive range of motion resulted in a pain flare-up.  There was no evidence of effusion, swelling or asymmetry of the right ankle joint, and x-rays of the right ankle revealed an intact ankle mortis, with no soft tissue swelling.  The examiner noted that the Veteran's major functional impairment is pain and discomfort, while he also noted that prolonged standing aggravates the ankle joint.  The examiner also noted, however, that the Veteran is independent in his activities of daily living, as he drives and goes fishing occasionally.  

Considering the pertinent evidence in light of the applicable legal authority , the Board finds that a rating in excess of 10 percent is not warranted for service-connected residuals of right ankle fracture with arthralgia at any point since the May 2008 effective date of the award of service connection,

The medical evidence shows that the service-connected right ankle disability has primarily been manifested by pain and discomfort, particularly with standing.  There has been no objective evidence of swelling, effusion, or other deformity in the right ankle joint, or evidence of any significant functional impairment.  

In particular, the Board notes that only medical evidence of record does not support a finding that the Veteran's 's right ankle disability has been manifested by any limited motion at any point pertinent to this appeal.  In fact, the Veteran demonstrated normal range of motion on dorsiflexion and plantar flexion, without pain, during the September 2008 VA examination.  The Board notes that, while the September 2008 VA examiner also documented the Veteran's range of motion on inversion and eversion, the rating schedule does not contemplate these particular range of motion tests in evaluating range of motion of the ankle.  See 38 C.F.R. § 4.71, Plate II.  Nevertheless, it is significant to note that, in describing the right ankle disability and the functional impairment caused thereby, the September 2008 VA examiner did not indicate that the Veteran's disability was manifested by any limitation of motion in any plane of excursion tested, including inversion or eversion.  Moreover, despite the Veteran's complaints of limited mobility, there simply is no other medical evidence that actually documents any measurable degree of  limited motion in his right ankle joint.  

In other words, the range of motion findings, alone, simply do not support a finding that the Veteran has had limited ankle motion warranting even the minimum 10 percent rating under DC 5271-much less, the marked limitation of motion required for the next higher, 20 percent rating under that diagnostic code.  

As noted above, however, VA may consider functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with the applicable rating criteria.  Formula for the spine.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7.  Here, the Veteran has reported having significant pain on a daily basis, with flare-ups in his right ankle, and the September 2008 examination revealed pain on eversion with a flare-up of pain on repetitive motion.  Given the lay and medical evidence indicating that the Veteran experiences painful motion in his right ankle, the RO awarded the Veteran a 10 percent rating (as noted, under DCs 5271-5024).  Such would appear to be consistent with the principle that pain on motion may warrant at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011).  [Parenthetically, it is noted that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Id.]  

Despite the foregoing, however, there is no lay or medical evidence of record that shows the Veteran's pain has been so disabling to actually or effectively result in marked limitation of motion in dorsiflexion or plantar flexion or greater  functional impairment that would warrant at least the next higher, 20 percent rating under Diagnostic Code 5271.  

Thus, while there is evidence of painful motion in the right ankle, the Board finds that the Veteran's painful motion is contemplated by the 10 percent rating currently assigned, as it clearly was assigned based upon evidence of painful motion.  See April 2009 rating decision.  There is no competent lay or medical evidence of record showing that the Veteran's pain or painful motion has resulted in any significant functional impairment, other than with respect to prolonged standing.  Indeed, the VA examiner specifically noted that that the Veteran's gait was normal and he did not use assistive devices, and there is no subsequent evidence which reveals a changed (i.e., more significant) disability picture.  It follows, then, that even with consideration of the sections 4.40 and 4.45 and DeLuca, as well as section 4.59 and Burton, the record presents no basis to assign a rating greater than 10 percent under DC 5271 at any time pertinent to this appeal.  

The Board also has considered the applicability of other, potentially applicable diagnostic criteria for rating the Veteran's right ankle disability, but finds that no higher rating is assignable any other diagnostic code.  There is no competent evidence of record documenting the presence of ankylosis in the right ankle or symptoms that more nearly approximate ankylosis of the ankle joint.  As such, an increased rating is not warranted under Diagnostic Codes 5270 or 5272.  Likewise, there is no competent evidence demonstrating that the service-connected right ankle disability is manifested by malunion of the os calcis or astragalectomy, and, as such, Diagnostic Codes 5273 or 5274, respectively, do not provide a basis for a higher rating.  See 38 C.F.R. § 4.71a.  The right ankle disability also has not been shown to involve any other factor(s) warranting evaluation of the disability under any other provision(s) of VA's rating schedule. 

As clearly indicated above, in evaluating this claim, the Board (like the RO) has certainly considered the lay assertions of record.  However, as also noted, the lay assertions made in support of his claim for higher rating are not entitled to more weight than the objective findings-to include range motion testing results and clinical findings as to the presence or absence of pain, visible deformity, and other functional impairments-which have been rendered by a trained medical professional in this case, and which are needed to evaluate the Veteran's right ankle disability under relevant rating criteria.  See 38 C.F.R. § 3.159 (a)(1); see also.  As indicated, in this case, consideration of both objective findings and the Veteran's complaints indicates that, since the May 2008 award effective date of the award of service connection, the Veteran's service-connected right ankle disability has been manifested primarily by painful motion and difficulty with prolonged standing, indicating a level of disability no greater than that contemplated in the 10 percent schedular rating assigned.  

The above determinations are based upon application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that, at no point pertinent to this appeal has the Veteran's service-connected right ankle disability reflected so exceptional or so unusual a picture as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b) (cited in the April 2009 SOC). 

There is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalizations).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. at 116. 

In this case, the Board finds that the schedular criteria are adequate to rate the Veteran's service-connected right ankle disability at all times pertinent to this appeal.  Indeed, the rating schedule fully contemplates the described symptomatology, including the Veteran's painful motion and provides for ratings higher than that assigned based on more significant, or additional, functional impairment.  Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

Finally, the Board acknowledges that, as held in Rice v. Shinseki, 22 Vet. App. 447 (2009), the matter of a veteran's entitlement to a total disability rating based upon individual unemployability (TDIU) may be deemed a component of a higher rating claim when expressly raised by the Veteran or reasonably raised by the record.  As such, the Board has also considered whether a claim for a TDIU has been raised in connection  with this claim.  In this case, however, the evidence reflects that the Veteran was employed at a urethane company, on the production line, and there is no allegation or indication he is no longer working or able to work, or that he has effectively been rendered unemployable due to his service-connected right ankle disability.  As such, a claim for a TDIU due to the right ankle has not been raised in conjunction with the current claim, and need not be addressed.

For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's service-connected residuals of right ankle fracture with arthralgia, pursuant to Hart, and that the claim for a higher rating must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

An initial rating in excess of 10 percent for service-connected residuals of right ankle fracture, with arthralgia, is denied.  



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs