Citation Nr: 1322558 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-15 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased rating for left ankle condition evaluated as noncompensable before June 21, 2012 and as 10 percent disabling on and after June 21, 2012. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from July 2001 to July 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The evidence of record establishes the Veteran had moderate limitation of motion in his left ankle during the entire period on appeal. 2. The evidence of record does not establish the Veteran had marked limitation of motion in his left ankle at any point during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for a left ankle condition prior to June 21, 2012 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5270-5274 (2012). 2. The criteria for a rating in excess of 10 percent for a left ankle condition have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5270-5274 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking an increased rating for his service-connected left ankle condition. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. 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 veteran working or seeking work. 38 C.F.R. § 4.2. 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 to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has 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). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's left ankle condition is currently rated under Diagnostic Code 5271 for limitation of motion. 38 C.F.R. § 4.71a. This code provides a 10 percent rating for moderate limitation of motion and a maximum 20 percent rating for marked limitation of motion in the ankle. The Veteran's was assigned a noncompensable rating until June 21, 2012, when his rating was increased to 10 percent. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The terms "moderate" and "marked" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. As will be discussed below, the Board finds the Veteran should be granted a 10 percent rating for the entire period on appeal. The Veteran filed his claim for service connection for a left ankle condition in March 2007, prior to his separation from military service. Throughout the period on appeal the Veteran has consistently related his current left ankle condition to his 2003 injury and subsequent surgery, as well as the additional procedure to later remove the hardware in his left ankle. Of note, the Board notes that the Veteran has not asserted that his condition worsened over the course of the appeal, but rather consistently stated he has been in pain and experienced limitation of motion since his 2003 injury. In December 2007 the Veteran was provided with a VA examination. The examiner noted the Veteran's broke his left ankle playing soccer in May 2003 and underwent fixation surgery. His ankle continued to be painful, however, so the plates and screws were removed in April 2007. The Veteran reported he continued to have some numbness of the scars on his ankles, as well as ankle pain with weather changes and running. He described pain over his malleolus lasting for 10 to 60 minutes four times per week. This pain also traveled up his left shin. The Veteran described his pain as aching and reported his pain was relieved by rest. Upon examination the examiner noted two scars on the Veteran's left ankle, one on the medial malleolus which was 4 cm by 1 cm. The other scar was along the lateral malleoulus and measured 7 cm by 7 cm. No tenderness, instability, tissue loss, edema, or abnormal texture was noted. Decreased sensitive of both scars was noted. Examination of the left ankle did not reveal any deformity, edema, effusion, weakness, tenderness, redness, heat, guarding of movement, or subluxation. Range of motion in left ankle was dorsiflexion to 20 degrees, plantar flexion to 45 degrees, suggesting normal range of motion. See 38 C.F.R. § 4.71a, Plate II. The examiner opined the Veteran's left ankle was status post surgical repair, left ankle fracture with scars. He opined the Veteran's condition had no impact on the Veteran's usual occupation as a veterinarian assistant. He noted the ankle condition did decrease the Veteran's running ability. X-ray of the left ankle was also performed and revealed fusion of the distal tibia and fibula possibly related to any old fracture of the distal tibia metaphysis. Otherwise the left lower leg was within normal limits. The Board notes the report of this VA examination suggests the Veteran had normal range of motion in his left ankle. However, the examiner noted the Veteran reported continued pain in his left ankle. VA regulations provide that pain can cause functional loss. 38 C.F.R. § 4.40. For example, the examiner noted his left ankle condition decreased the Veteran's running ability, suggesting the Veteran experienced some impairment of his left knee. Therefore, although the examiner did not the Veteran did not exhibit limitation of motion at this time, the Board finds the record still contains evidence the Veteran experienced some impairment due to the chronic pain in his left ankle. In March 2008 the Veteran established care with the VA for his left ankle. The Veteran reported aching, stiff pain at all times, exacerbated by temperature fluctuations. The physician noted the ankle was not swollen or red. Rotation and plantar flexion were normal, but the Veteran had reduced dorsiflexion in his left ankle. The physician also noted two well-healed scars, one on each malleolus. At this appointment only three months after his VA examination the physician noted limited motion in the Veteran's left ankle. Of note, the Veteran did not report at this time that his condition had worsened since December 2007, but rather reported he experienced pain since 2003. As such, the Board finds this evidence suggests the Veteran may have been experiencing a limitation of motion throughout the period on appeal. In June 2008 the Veteran returned to the VA. He reported "quite a bit of pain" in his left ankle. The physician gave him a compressive brace to provide additional support while jogging, as well as pain medication. In March 2009 the Veteran again returned to the VA. He reported his left ankle pain severely limited his activities. The physician diagnosed chronic ankle pain. That same month the Veteran's VA physician submitted a letter to the VA. The doctor noted the Veteran's ankle never fully recovered despite physical therapy, and he continued to have continuous pain. The Veteran reported his ankle constantly ached, was stiff, and had reduced range of motion. Temperature or weather fluctuations also exacerbated his pain. She opined his range of motion was limited compared to the right ankle. The doctor also indicated a recent x-ray showed osteoarthritis in the left ankle. This record continues to reflect the Veteran had some impairment due to his left ankle condition. Additionally, the VA physician specifically noted the Veteran had limited motion in his left ankle. The physician did not note this limited motion was a recent development, but instead suggested the Veteran had this condition since his in-service injury. Finally, VA regulations provide that all benefit of the doubt must be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As such, the Board finds that the Veteran's reduced range of motion as well as pain in his left ankle existed throughout the period under review. In June 2012 the Veteran was provided with a VA examination. The examiner reviewed the claims file as well as personally interviewed the Veteran. The examiner noted the Veteran had two linear scars on his left ankle, one 7 cm scar over his medial maleolus and one 12 cm long over his lateral maleolus. The examiner opined these scars did not result in any limitation of function, and were not painful or unstable. The examiner also noted the Veteran had a left ankle condition following surgery in 2003 and hardware removal in 2007. The examiner noted the Veteran reported constant pain and stiffness, lasting up to one hour. Range of motion testing revealed flexion to 30 degrees and dorsiflexion to 5 degrees in the left ankle, suggesting motion was limited. Repetitive-use testing was conducted but no additional loss of range of motion was noted. The examiner opined the Veteran had less movement than normal and pain on movement in his left ankle. Muscle strength was normal and stability tests were negative. No ankylosis was noted. The examiner noted imagining studies revealed degenerative or traumatic arthritis in the left ankle. The examiner opined the Veteran's left ankle condition did not impair his ability to work. Following this VA examination the RO granted the Veteran an increased rating to 10 percent based on his limitation of motion. However, the Board finds this June 2012 report does not establish the Veteran's condition had worsened during the period on appeal. Instead, this report reflects the Veteran had continuous achy pain in his left ankle, exacerbated by changes in temperature and weather, as well as some limitation of motion in his left ankle. These are the same complaints the Veteran has consistently reported and have been consistently noted by his treating physicians throughout the period on appeal. As such, the Board agrees with the RO that a 10 percent rating was warranted, however the Board finds this rating was warranted during the entire period on appeal. As such, a 10 percent rating is granted effective July 17, 2007, the date service connection was granted. The weight of the evidence fails to establish the Veteran's left ankle condition merited an increased 20 percent rating at any point during the period on appeal. As discussed above, a maximum 20 percent rating is warranted when a veteran experiences 'marked' limitation of motion in his ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board finds the evidence does not establish the Veteran had marked impairment of motion at any point during the period on appeal. The Veteran continued to have some range of motion of his ankle in all directions, as evidenced by the most recent range of motion testing from June 2012. In addition, all physicians who reviewed the Veteran agreed he did not have any occupational impairment due to his ankle condition. Therefore, the Board finds that the evidence of record establishes the Veteran had only moderate limitation of motion in his ankle, not marked. As such, a 20 percent rating is not warranted at any point during the period on appeal. While the Board has noted the Veteran's statements, these statements, citing pain and arthritis, support the current findings, they do not clearly support a 20 percent finding. The Veteran's statements are, at best, unclear on this point. The Board has also considered whether the Veteran would be entitled to an increased rating under any additional Diagnostic Code related to the ankle. 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. However, the evidence does not establish the Veteran had ankylosis of the ankle at any point during the period on appeal, so Diagnostic Codes 5270 and 5272 do not apply. Similarly the evidence does not establish the Veteran had malunion of the os calcis or astragalus or astragalectomy at any point during the period on appeal, so a rating under Diagnostic Codes 5273 and 5274 is also not warranted. Therefore the Board finds the Veteran is not entitled to an increased rating under additional diagnostic codes related to the ankle. The Board also notes the evidence of record establishes the Veteran had two scars on his left ankle as a result from his surgery. As such, the Board has also considered whether the Veteran would be entitled to an additional rating for scars on his left ankle. Diagnostic Codes 7800 through 7804 relate to scarring. 38 C.F.R. § 4.118. However, code 7800 applies to scars of the head, face, or neck and is therefore not applicable in this case. Codes 7801 and 7802 only provide compensable ratings for deep nonlinear scars in excess of six square inches (30 square centimeters) or superficial scars that are greater than 144 square inches (929 square centimeters). The December 2007 VA examiner noted the Veteran's smaller scar was four centimeters by one centimeter, and the larger scar was seven square centimeters. As such, neither scar is large enough to merit a compensable rating under Diagnostic Code 7801 or 7802. Finally, Diagnostic Code 7804 applies to scars which are unstable or painful. In June 2012 the VA examiner specifically noted the Veterans scars were not painful or unstable. As such, the Board finds this diagnostic code is also not applicable. As such, the Board finds the Veteran does not merit an increased rating for either of the scars on his left ankle. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board has particularly noted that Veteran's statements and his complaints of pain. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In both the December 2007 and June 2012 VA exams the examiners performed repetitive use testing on the Veteran and noted he did not experience additional functional loss in his left ankle after repetitive use. The Board notes that in addition to these examinations the Veteran has repeatedly sought treatment for his left ankle pain. However, the Board finds that the VA treatment records do not establish the Veteran experienced additional functional loss due to his reported pain. As such, the Board finds a higher rating is not warranted under DeLuca, notwithstanding the Veteran's complaints cited above. The examination reports, based on objective review of the disability, simply do not support a finding of a higher rating beyond ten percent. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a veteran is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the Board finds that the schedular rating criteria reasonably describe the Veteran's symptomatology and disability level. The Veteran's primary complaints are of pain and limited motion in his left ankle. The Board finds that these factors have already been specifically contemplated by the rating criteria and the DeLuca factors (and the basis for the limited grant above). Additionally, both VA examiners in this case opined the Veteran's left ankle condition did not have any impact on his occupation, providing probative evidence he did not suffer marked interference with his employment beyond that already contemplated by the schedular rating criteria. See 38 C.F.R. § 4.1. As such, the Board finds that the Veteran's disability picture is not exceptional, and an extraschedular consideration is not required. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the evidence reflects the Veteran has continued his ordinary full-time employment as a veterinarian assistant throughout the entire period on appeal. Thus, the Board finds that Rice is inapplicable since there is no evidence the Veteran is unemployed. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in July 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with two VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of either examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim for a 10 rating prior to June 21, 2012 is granted. The claim for a rating in excess of 10 percent is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs