Citation Nr: 1326732 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-00 226A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial rating in excess of 10 percent for status post left ankle strain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had National Guard service from June 3, 1978, to February 2, 1986. On February 3, 1986, the Veteran entered into Active Guard/Reserve status from that date until his discharge on May 31, 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). (Due to the location of the Veteran's residence, the jurisdiction of this appeal remains with the RO in St. Paul, Minnesota.) In December 2010 and October 2012, the Board remanded this issue to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. The case has since been returned to the Board for further appellate action. The RO certified this appeal to the Board in February 2013. In June 2013, additional medical evidence was added to the Veteran's Virtual VA paperless claims file. However, the Veteran's representative waived the Veteran's right to have the RO initially consider this evidence in a statement dated in February 2013. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision, along with his paper claims file. The issue of entitlement to a temporary total disability rating due to surgical convalescence for the Veteran's service-connected status post left ankle strain has been raised by the record in an August 2009 statement, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Throughout the appeal, the status post left ankle strain has been manifested by moderate limitation of motion with pain, but has not been manifested by marked limitation of motion, ankylosis, malunion, or astragalectomy of the left ankle. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for status post left ankle strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1 - 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5299-5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice provided before service connection was granted was legally sufficient, VA's duty to notify in this case is satisfied. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The RO obtained the Veteran's STRs, Social Security Administration (SSA) disability benefits records, and post-service treatment records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The Veteran has been afforded several VA examinations. The May 2006, October 2006, May 2007, April 2008, January 2012, and December 2012 examinations are adequate, as the examiners considered all of the pertinent evidence and described in full the current manifestations of the Veteran's left ankle disability. The Board is also satisfied as to substantial compliance with its December 2010 and October 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). These remands included scheduling the Veteran for additional VA examinations, which he submitted to in January 2011 and December 2012. The remands also included obtaining the Veteran's recent VA treatment records, which were obtained and associated with his claims file. Finally, the remands directed the RO/AMC to readjudicate the Veteran's claim, which was accomplished in the October 2011 and February 2013 Supplemental Statements of the Case (SSOCs). Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance with the development of evidence is required. II. Increased Rating Claim The Veteran seeks a higher initial rating for his left ankle disability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations 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. § 4.97. During an appeal of a disability rating, either from an initial rating assigned on granting of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability impairment severity during an appeal. So, staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is in receipt of a 10 percent disability rating under 38 C.F.R. § 4.71a, DCs 5299-5271 for his status post left ankle strain. He is rated by analogy to DC 5271. If a veteran has an unlisted disability, as in this case, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (providing specific means of listing DC for unlisted disease or injury). DC 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling. Marked limitation of motion of the ankle is rated as 20 percent disabling. A 20 percent rating is the maximum scheduler rating available under DC 5271. 38 C.F.R. § 4.71a. 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 (2012). The Board notes that words such as "severe" and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6. An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Further, when evaluating disabilities of the joints, the Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. After consideration of the evidence, the Board finds that a higher initial rating is not warranted. Initially, the Board notes that the Veteran sustained a distal fibula fracture of his left ankle in August 2009 after stepping in a hole. As a result of this injury, the Veteran subsequently underwent an open reduction internal fixation (ORIF) procedure on his left ankle in September 2009. The Board is precluded from differentiating between symptoms attributed to a nonservice-connected disability and those symptoms related to a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, the Veteran is not presently service-connected for the left ankle fracture. In fact, the December 2012 VA examiner opined that the left ankle fracture is less likely than not related to the Veteran's active duty service. The examiner pointed out that during the Veteran's active military service, in August 1978, he presented with left ankle pain of the lateral malleolus. X-rays at that time were negative for a fracture. The diagnosis was left ankle sprain, which was treated conservatively and resolved. The December 2012 examiner noted that a physical examination in November 1981 identified no physical abnormalities of the left ankle. A physical examination in February 2005 also identified no physical abnormalities of the left ankle; however, the clinician recorded a history of motorcycle accident in June 2003 with chronic left ankle pain thereafter. The December 2012 examiner stated that a review of the STRs and the claims file revealed no information regarding medical care following a motorcycle accident in June 2003 or any indication that a Line of Duty determination had been established for injuries sustained in this motorcycle accident. The December 2012 examiner continued by indicating that at the May 2007 VA examination, the Veteran's left ankle range of motion was normal without pain, although X-rays revealed an irregularity at the posterior medial malleolus likely reflecting an old injury or healed fracture. The December 2012 examiner noted that the Veteran reported to the October 2006 VA examiner that he sustained a left ankle sprain in 1978, but there was no mention of a left ankle fracture history or motorcycle accident in 2003 with a left ankle injury. The December 2012 examiner then reported that the Veteran sought treatment in August 2009 for his fracture after stepping in a hole. The examiner noted that X-rays taken at that time showed a fracture of the medial malleolus, which was not identified on X-rays taken in-service in 1978. There are no contrary medical opinions regarding the etiology of the nonservice-connected fracture. Therefore, the Board finds that the left distal fibular fracture cannot be service-connected and thus is unrelated to the service-connected status post left ankle strain. However, the evidence does support a finding that the limitation of motion in the Veteran's left ankle is due to his service-connected left ankle disability. There are two medical opinions of record concerning range of motion. The January 2011 VA examiner found that "most" of the limitation of motion of the Veteran's left ankle was the result of the nonservice-connected fracture. However, the examiner did not attempt to quantify the limitation caused by the service-connected status post left ankle strain and the nonservice-connected fracture. In contrast, the December 2012 VA examiner found that all of the Veteran's current decreased range of motion can be attributed to his service-connected left ankle disability. Therefore, in giving the Veteran the benefit of the doubt, the Board finds that the Veteran's limitation of motion of the left ankle is due to his service-connected left ankle disability. Despite finding that the reported limitation of motion is attributable to the service-connected status post left ankle strain, the Board finds that the Veteran is not entitled to initial disability rating greater than 10 percent. Specifically, the December 2012 VA examiner noted that there was normal dorsiflexion, with objective evidence of painful motion beginning at 20 degrees or greater, and 30 degrees of plantar flexion, with no objective evidence of pain. The examiner determined that the Veteran's service-connected status post left ankle strain is best rated as moderate. The examiner noted that the Veteran's chronic pain of the left ankle is associated with a mild to moderate reduction in range of motion of the left ankle. This conclusion is supported by the range of motion findings from previous VA examinations. The Veteran had 20 degrees of dorsiflexion and 45 degrees of plantar flexion in May 2006. He had 40 degrees of plantar flexion in October 2006. At the May 2007 VA examination, dorsiflexion was limited to 15 degrees and plantar flexion was limited to 30 degrees. At the April 2008 VA examination, the Veteran had 15 degrees of dorsiflexion and 30 degrees of plantar flexion. At the January 2011 VA examination, the Veteran had 10 degrees dorsiflexion, with objective evidence of pain throughout and a slight joint popping sound, and 30 degrees of plantar flexion, with objective evidence of pain throughout. As such, the Board believes that the overall picture presented is one of essentially moderate limitation of motion. Thus, a 20 percent disability rating under DCs 5299-5271 is not warranted. The Board also finds no basis to award a compensable rating for the left ankle disability based upon functional loss due to pain, weakness, fatigability, or incoordination. Specifically, at the October 2006 VA examination, the Veteran reported increased pain with vigorous activities, but did not report any actual "flares" of his ankle pain. The Veteran also did not report any further loss of motion of the ankle with increased pain. The examiner determined that the Veteran's DeLuca factors were pain and increased fatigability, but weakness and incoordination were not shown at the examination. At the May 2007 VA examination, the examiner determined that the Veteran's left wrist had no "flares." Following repetitive motion, the Veteran's left ankle was manifested by 40 degrees of plantar flexion (normal is 45 degrees) and 5 degrees of dorsiflexion (normal is 20 degrees), with tenderness. The examiner found that the Veteran did not have fatigability or pain with motion following the repetitive motion. At the April 2008 VA examination, the examiner determined that the Veteran did not have further loss of motion or increase of pain in the left ankle following repetitive motion. At the January 2011 VA examination, the VA examiner found that there were no additional functional limitations of this joint, including no additional loss of range of motion, during flare-ups or secondary to repetitive use of the left ankle. At the December 2012 VA examination, following repetitive motion of the left ankle, the Veteran did not have any additional limitation in his ranges of motion. The examiner indicated that the Veteran did have functional loss and/or functional impairment in the left ankle, to include less movement than usual, pain on movement, and interference with sitting, standing, and weight-bearing. Given that the Veteran was able to achieve the aforementioned ranges of motion of the left ankle on examination despite the presence of pain, the Board finds that additional compensation for pain is not warranted. Indeed, pain alone does not constitute a functional loss under VA regulations. See Mitchell, 25 Vet. App. at 32. The Board is also cognizant that the Veteran has not reported any flare-ups of pain. An award of a higher rating cannot be based on speculation of the additional functional loss in terms of degrees during such flare-ups. Thus, the Board finds that the Veteran's painful limitation of motion and additional functional impairment meet the impairment contemplated with a 10 percent rating throughout the entire appeal period and does not more nearly approximate functional impairment commensurate with a higher 20 percent rating. Even when considering the Veteran's pain and functional impairment following repetitive motion, the evidence of record does not establish that he has marked limitation of motion of the left ankle. His ranges of motion of the left ankle, following repetitive motion, remained the same or slightly decreased, and did not decrease to a level of marked limitation of motion. Following repetitive motion of the left ankle, many of his ranges of motion were still normal or slightly below normal. Accordingly, the evidence of record does not support the assignment of a higher 20 percent disability rating based on additional functional limitation following repetitive use or flare-ups of the joint. Similarly, given the evidence of record, a higher disability rating would not be warranted under any other diagnostic code. See 38 C.F.R. § 4.7 (2012). Specifically, there is no X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5003 (2012). The Board has also considered whether a higher evaluation would be in order under other relevant diagnostic codes, such as that governing ankylosis of the ankle, ankylosis of the subastragalar joint, malunion of the os calcis or astragalus, and astragalectomy, but finds that the criteria for an increased disability rating are simply not met. See 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274 (2012). The Board acknowledges that there was no dorsiflexion past the neutral 90 degree angle during the October 2006 VA examination in October 2006, and that this range of motion falls squarely within the 30 percent criteria under DC 5270 (dorsiflexion between 0 and 10 degrees). However, the Board finds that the overall disability picture is better reflected with an assigned 10 percent rating under DC 5271 for the entire appeal period. Notably, the Veteran has not been shown to have ankylosis of the left ankle. All other range of motion findings were normal or slightly below normal, which does not represent marked limitation of motion. In addition, none of the VA examiners found evidence of malunion of the os calcis or astragalus. Therefore, the Board finds that the Veteran is not entitled to a higher or separate evaluation under DCs 5270, 5272, 5273, and 5274. Additionally, regarding a separate disability rating for neurologic impairment of the Veteran's left ankle, the Board notes that the December 2012 VA examiner determined that the Veteran's paresthesias of the left lateral malleolus extending into the left foot was related to his nonservice-connected left ankle fracture and not his service-connected status post left ankle strain. The examiner reasoned that this paresthesias was documented within one month postoperatively after the repair of the left distal fibular fracture and is completely related to his nonservice-connected fracture. There are no contrary medical opinions on this issue in the claims file, and the evidence of record does not establish that the Veteran's service-connected status post left ankle strain causes any neurological impairment. Therefore, a separate disability rating under the neurological codes is not warranted for the Veteran's service-connected status post left ankle strain. 38 C.F.R. § 4.124a. The Board also notes that the Veteran has a scar from his ORIF surgery on the lateral portion of his left ankle, as described at the January 2011 VA examination. The scar is related to the Veteran's non-service-connected left ankle fracture. This scar has not been attributed to the service-connected status post left ankle strain, and was not shown on the VA examinations dated prior to the 2009 left ankle fracture surgery. Therefore, this scar is not related to the service-connected status post left ankle strain, and a separate disability rating for a compensable scar cannot be awarded. 38 C.F.R. § 4.118. In light of the holding in Hart, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected left ankle disability. However, the Veteran's symptoms do not appear to have changed significantly during this initial rating period so as to warrant a staged rating. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his disability is worse than the assigned rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings. In sum, the preponderance of the evidence is against the assignment of an initial disability rating in excess of 10 percent for the service-connected status post left ankle strain at any time during the appeal period. Thus, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. Here, because the schedular rating of 10 percent for the Veteran's status post left ankle strain fully addresses his symptoms, which include mainly pain and limitation of range of motion, referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted. The evidence of record also does not establish that the Veteran's status post left ankle strain prevents him from being employed or requires frequent hospitalizations. At the Veteran's recent VA examination in December 2012, the VA examiner determined that, when considering only the Veteran's service-connected status post left ankle strain, the Veteran is capable of substantial gainful employment in his chosen profession, even though the examiner acknowledged that the service-connected status post left ankle strain would impact the Veteran's ability to stand or get up out of a chair multiple time each hour during the work day or walking on uneven ground while performing occupational duties. There are no contrary employability opinions of record. The evidence of record documents that the Veteran was hospitalized in 2009 for his fracture of the left ankle, but, as described above, this injury is unrelated to the Veteran's service-connected status post left ankle strain. The remaining treatment records do not demonstrate that the Veteran has been hospitalized for the treatment of his service-connected status post left ankle strain. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. At the Veteran's recent VA examination in December 2012, the VA examiner determined that, when considering only the Veteran's service-connected status post left ankle strain, the Veteran is capable of substantial gainful employment, even though the examiner acknowledged that the service-connected status post left ankle strain would impact the Veteran's employment. There are no contrary employability opinions of record. Further, the Board notes that the Veteran previously filed a TDIU claim for benefits in January 2007. The TDIU claim was denied in the October 2007 rating decision, and the Veteran did not appeal that decision. Therefore, in light of all these facts, the Board finds that consideration of TDIU is not warranted. ORDER An initial rating in excess of 10 percent for the status post left ankle strain is denied. ____________________________________________ REBECCA N. POULSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs