Citation Nr: 1322657 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 07-32 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an evaluation in excess of 30 percent for residuals of a fracture of the left distal fibula with ankle arthritis (hereinafter "left ankle disability"). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from September 1972 to February 1974 This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2012, a hearing was held before the undersigned Veterans Law Judge (VLJ) of the Board. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ explained the issue that is before the Board. The representative and the VLJ asked questions to ascertain whether the Veteran had submitted evidence in support of his claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim on appeal. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. This case was previously before the Board in September 2012, at which time the instant claim was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The case is once again before the Board for appellate consideration. FINDING OF FACT The Veteran's left ankle disability is not manifested by nonunion of the left fibula or ankylosis of the left ankle at any point during the appeal period. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for residuals of a fracture of the left distal fibula with ankle arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5262 and 5270 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify the Veteran was satisfied prior to the initial AOJ decision through notice letters dated August and October 2005 and March 2006 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his increased evaluation claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. VA must also make reasonable efforts to assist the appellant 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 claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with the claims file. All post-service treatment records identified by the Veteran have also been obtained. He has not identified any additional records that should be obtained prior to appellate consideration. VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These VA examinations are adequate for the purposes of evaluating the Veteran's left ankle disability, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide a discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final note, the Board again observes this case was remanded by the Board in September 2012 for additional development. Specifically, the Board instructed that the Veteran be provided an additional VA examination to address the severity of his left ankle disability. The requested examination was accomplished in October 2012. As such, the Board finds there has been substantial compliance with the prior remand, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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 reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record generated since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran has been assigned a 30 percent disability evaluation for his left ankle disability under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5262, pertaining to impairment of the tibia and fibula. Also potentially applicable is Diagnostic Code 5270, pertaining to ankylosis of the ankle. Initially, the Board notes that, at 30 percent disabling, the Veteran is in receipt of the maximum evaluation available under any potentially applicable diagnostic criteria pertaining to limitation of motion of the ankle. See, e.g., 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). Therefore, a discussion of such criteria is not necessary in the instant case. Diagnostic Code 5262 provides for a 30 percent evaluation for malunion of the fibula with marked ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Nonunion of the fibula with loose motion requiring a brace warrants a maximum 40 percent evaluation. Id. Nonunion is defined as the "failure of the ends of a fractured bone to unite." See Dorland's Illustrated Medical Dictionary at 1308 (31st ed. 2007). Diagnostic Code 5270 provides for a 30 percent evaluation with ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion between zero and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270. A maximum 40 percent evaluation 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. Id. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Dorland's Illustrated Medical Dictionary at 94 (31st ed. 2007). Turning to the record, the report of an April 2006 VA examination notes the Veteran reported a daily throbbing pain in the left ankle with weakness, stiffness and swelling. He reported instability of the left ankle with fatigability and lack of endurance. On examination, there was no dislocation of the left ankle, and the Veteran was able to exhibit limited motion on dorsiflexion, plantar flexion, inversion and eversion. X-rays revealed osteoarthritic changes of the tibiotalar joint with some widening of the joint space on the medial side. A November 2009 x-ray of the left ankle revealed no acute fracture with asymmetry of the ankle mortise which was widened medially and narrowed laterally. There was moderate degenerative spurring of the tibiotalar and talofibular articulations with mild to moderate soft tissue swelling. At a March 2011 VA examination, the Veteran reported pain, stiffness and weakness of the left ankle, utilizing corrective shoes, orthotic inserts, two canes and a brace. There were no episodes of dislocation or subluxation, locking, effusions or symptoms of inflammation, nor was there loss of a bone or part of a bone. The Veteran achieved dorsiflexion from zero to ten degrees, plantar flexion from zero to ten degrees, both before and after repetitive testing. The examiner noted ankylosis of the left ankle fixed in plantar flexion and dorsiflexion, both with less than five degrees mobility, and also fixed in abduction, adduction, inversion and eversion. X-rays and a CT scan revealed narrowing joint spaces with bone-on-bone appearance of the talofibular and tibiotalar joints. Finally, the Veteran was provided another VA examination in October 2012, at which he again reported constant severe pain in the left ankle with swelling and instability. On range of motion testing, he exhibited 35 degrees of plantar flexion (25 degrees following repetitive testing), five degrees of dorsiflexion, and inversion and eversion each from zero to ten degrees. The examiner found no ankylosis of the ankle or evidence of nonunion or malunion other than stable swelling. Considering the medical evidence of record, the Board finds that an increased evaluation is not warranted at any point during the appeal period. In this regard, there is no evidence that the Veteran's fractured fibula has resulted in nonunion of the bone. While there is x-ray evidence of widening and narrowing joint spaces, there is no evidence of a failure of the ends of the previously fractured fibula to unite. As such, a 40 percent evaluation is not warranted under Diagnostic Code 5262. Further, the Board finds a preponderance of the evidence is against a finding that the Veteran's left ankle disability is manifested by ankylosis at any point during the appeal period. The Board acknowledges the March 2011 VA examination report specifically found ankylosis of the left ankle. However, this finding is internally inconsistent. In this regard, the March 2011 VA examination report notes ankylosis in all planes of motion plantar flexion, dorsiflexion, abduction, adduction, inversion and eversion. However, the report also notes the Veteran was able to exhibit at least some motion in all planes. Such range of motion findings, no matter how limited, are not consistent with a determination that the Veteran's ankle is immobile in any plane of motion. Therefore, the Board places no probative value on the March 2011 VA examination report showing a finding of ankylosis of the left ankle. All other medical evidence of record notes the Veteran is capable of at least some motion of the left ankle and, therefore, ankylosis is not found. As such, a 40 percent evaluation under Diagnostic Code 5270 is not warranted. The Board acknowledges the Veteran's contentions that his left ankle disability warrants a higher evaluation, and has considered the Veteran's lay statements and those submitted by others on his behalf, that he suffers severe left ankle pain and limited motion. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment, and the opinions and observations of the Veteran and other lay persons cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a. See Moray v. Brown, 2 Vet. App. 211, 214 (1993). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an increased evaluation for the Veteran's left ankle disability, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). As a final note, the discussion above reflects that the symptoms of the Veteran's left ankle disability are fully contemplated by the applicable rating criteria. The effects of the Veteran's disability, including pain, instability and limited range of motion, have been considered and are contemplated in the rating schedule. Thus, 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, the Board observes the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), is not applicable in the instant case. While entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims, the Board observes entitlement to TDIU has been denied during the course of the instant appeal. See May 2013 rating decision. The Veteran has not initiated an appeal of this rating decision. Therefore, remand or referral of a claim for TDIU is not necessary in the instant case. ORDER An evaluation in excess of 30 percent for residuals of a fracture of the left distal fibula is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs