Citation Nr: 1322940 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-48 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. What evaluation is warranted for right ankle degenerative joint disease, currently evaluated as 10 percent disabling, from April 9, 2010 to March 28, 2011? 2. What evaluation is warranted for right ankle degenerative joint disease since March 29, 2011? WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2002 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran was afforded a videoconference hearing in March 2011, a transcript of which has been associated with the claims folder. The issue of entitlement to an increased evaluation for right ankle degenerative joint disease since March 29, 2011, is, addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT From April 9, 2010 to March 28, 2011, the Veteran' right ankle disability was not manifested by evidence of a marked limitation of ankle motion. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for right ankle degenerative joint disease from April 9, 2010 to March 28, 2011, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claim would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate this claim. The Veteran was afforded a VA examination in June 2010, and the report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal, and is adequate for purposes of evaluating this claim. He was provided the opportunity to present pertinent evidence and testimony before the Board. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. The case is ready for adjudication on the instant matter. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 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 (2012). 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, as here, the question for consideration is the propriety of the initial rating assigned, 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. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59, provide for consideration of a functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. 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. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, and include consideration of weakened movement, excess fatigability, incoordination, swelling and pain on movement. 38 C.F.R. § 4.45. The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 4.49 (2012). Diagnostic Code 5271 provides rating criteria for evaluating any limitation of ankle motion. Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, a moderate limitation of ankle motion warrants a 10 percent rating. A marked limitation of ankle motion warrants a 20 percent rating. Words such as "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." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6. Plate II, located in 38 C.F.R. § 4.71, indicates that full ankle dorsiflexion is from 0 to 20 degrees and that full ankle plantar flexion is from 0 to 45 degrees. By way of history, service treatment records show that the Veteran rolled his right ankle in service, and was assessed as having a recurrent right ankle sprain. In April 2010 the Veteran claimed entitlement to service connection for his right ankle disorder, and indicated that he wore a lace-up ankle brace, and experiences pain, weakness, and instability. Private treatment reports from 2008 show that the Veteran rolled his left ankle while in training with the State Police; however, the appellant has indicated that this reference should have been to his right ankle. The Veteran was afforded a June 2010 VA examination which revealed objective evidence of painful motion and guarding of movement. There was no edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal movement. He demonstrated a normal gait, no difficulty standing, no unusual shoe wear pattern that would indicate abnormal weight bearing, and no ankylosis. Range of motion study revealed dorsiflexion from 0 to 20 degrees, with pain at 20 degrees. Plantar flexion was from 0 to 35 degrees, with pain at 35 degrees. There was no varus or valgus angulation of the os calcis in relationship to the long axis of the tibia and fibula. There was no additional loss of motion due to pain, fatigue, weakness, stiffness, or lack of endurance following repetitive use. Diagnostic workup showed normally outlined bony structures and joint spaces, without acute fracture or dislocation. The lateral and medial malleolus demonstrated degenerative changes medially. Ankle mortise was well visualized. There was no evidence for calcaneal spur formation. An os trigonum was noted posterior to soft tissues of the right ankle. The impression was right ankle degenerative changes. In August 2010 the Veteran reported experiencing sharp, burning right ankle pain most of the time when walking or running, and extreme discomfort when standing for any duration of time. He indicated that he frequently rolled his ankle while walking on unlevel terrain, and that by the end of the day his ankle was swollen. He reported that running to maintain physical fitness and standing in one spot during the day were difficult for him due to his right ankle, and as such interfered with his work as a State Trooper. At a March 2011 videoconference hearing the Veteran reported having constant pain, instability, tenderness, swelling to twice its normal size, and weakness of the right ankle. He reported that his ankle interfered with his ability to work on certain details; specifically, he was unable to take overtime because of the standing requirements. The Veteran reported that he rolled his ankle constantly, and needed to wrap it in order to run, and that while in the State Police Academy he had been treated for it several times. The Veteran highlighted discrepancies with his VA examination, contending that there was in fact an unusual shoe wear pattern, also noted by his orthopedic doctor; that weakness, swelling, instability and pain were all present; and that he had extremely limited motion of his ankle. The Veteran described his shoe wear pattern as showing greater wear on the outside right of the shoe. The Veteran's chief complaints throughout the pendency of this appeal are that right ankle function is affected by pain, weakness, instability, and swelling; and that the joint limits his walking, running or standing. He reports that his right ankle rolls frequently, and that he wears a lace-up ankle brace. The Board finds that the Veteran is both competent to report his symptomatology and that his assertions are credible. While the appellant reports of pain are credible, the most probative evidence shows that during the pertinent period the appellant did not have more than a moderate limitation of right ankle motion. In this regard, the rating schedule evaluates the Veteran's right ankle disorder based on the degree of any limitation of ankle motion. Here, the appellant showed full dorsiflexion at his June 2010 examination, and 77 percent of full plantar flexion. While the appellant clearly has pain when walking, running and on prolonged standing; and while he has some ankle instability and weakness, the level of functional impairment due to these factors are not manifested by a limitation of ankle motion that it equates to more than a moderate limitation of ankle motion. Finally, the Board has also considered the applicability of other diagnostic codes, however, the appellant's ankle disorder is not properly described as weak foot (5277), pes cavus (5278), Morton's disease (5279), hallux valgus (5280), hallux rigidus (5281), hammertoe (5282), malunion or nonunion of the tarsal or metatarsal bones (5283), or a moderate "other foot injury" (5284). Indeed, the facts and circumstances of this case do not justify the application of these other codes or, if they may be applied, they are of no benefit to the Veteran. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). The Board has carefully considered the Veteran's pleadings regarding his symptoms, which include experiences with pain, instability, weakness, swelling, and rolling of his ankle. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability for his disorder, according to the appropriate diagnostic codes, or, to attribute specific symptoms to a disability. Robinson v. Shinseki, 557 F.3d 1355 (2009). Competent evidence concerning the nature and extent of the Veteran's disability has, however, been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and treatment records) directly address the criteria under which the disability is evaluated. As such, the Board finds that the most probative evidence preponderates against the claim. Hence, the benefit sought on appeal is denied. Extraschedular Consideration The Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology. In other words, the Veteran has described symptomatology regarding his right ankle that includes swelling, pain, instability, and weakness with functional limitations to running, walking and standing. The Veteran's right ankle disorder is not manifested by symptomatology not already contemplated by the Rating Schedule, and his right ankle disorder is not shown to have caused either a marked interference with employment or a need for frequent hospitalization. As the rating criteria reasonably describe the disability and symptomatology, the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). In reaching this decision the Board considered the doctrine of reasonable doubt, however, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107. ORDER Entitlement to an increased rating for the right ankle disability from April 9, 2010 to March 28, 2011 is denied. REMAND In November 2012, the Veteran indicated that shortly after his hearing March 28, 2011, his right ankle worsened. Specifically, he reported dealing with excruciating pain in his ankle during all waking hours, so much so that the pain interfered with his ability to fall asleep. He reported that he also had difficulty standing in one spot for long periods of time, and that this was something that he was required to do for work as a State Police Trooper. The Veteran reported that he could no longer run, and was even experiencing difficulty walking at times. He indicated that he had an examination with a private orthopedist who informed him that his ankle was in a degenerative state, with early stages of arthritis, and possibly bone spurs. The Veteran indicated his intent to seek medical follow-up with the VA in Newington, Connecticut. In light of the Veteran's contentions that his right ankle disability has worsened since his March 2011 hearing, and his indication that he has since sought additional medical treatment for his ankle disability, the Board finds that additional development is necessary to determine an appropriate initial rating for his service-connected right ankle disability since March 29, 2011. When a Veteran alleges that his disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As such, the Board finds that a current VA examination is necessary to ascertain the current severity of the Veteran's right ankle from March 29, 2011. Accordingly, the case is REMANDED for the following action: 1. The RO must take appropriate action to secure any and all pertinent records to include any private orthopedic records which have been identified but not previously secured for inclusion in the claims file. All attempts to secure this evidence must be documented in the claims file. If the AMC/RO cannot locate such records, the AMC/RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded a VA orthopedic examination to assess the current severity of his right ankle. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. In accordance with the latest worksheet for rating ankle disorders the examiner must provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his right ankle, disability. The impact of the right ankle disability on the appellant's ability to work must be addressed. A complete rationale for any opinion expressed must be provided. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO should review any report to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that the examiner documented his or her consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. Then, after conducting any indicated additional development, the RO must readjudicate the issue. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs