Citation Nr: 1326740 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-03 366A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating in excess of 20 percent for residuals of a left ankle fracture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to an increased rating in excess of 20 percent for the service-connected left ankle disability. The claim was remanded in November 2010, April 2012, and January 2013 for additional development. FINDING OF FACT The residuals of left ankle fracture have been manifested by pain with marked limitation of motion, but without ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals of a left ankle fracture have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5270, 5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in September 2005, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for increased rating. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran was notified of the first three elements of the Dingess notice by the September 2005 letter. While he has not received specific information regarding the disability rating and effective date elements of his claims, as the claims are being denied no additional disability rating or effective date will be assigned. Therefore, the Veteran is not prejudiced by the delayed notice on these elements. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. In February 2013, the Veteran was asked to identify and provide authorization for VA to obtain all records of private treatment. He responded by providing the private treatment records he wanted to be considered. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The files included in the virtual system have been reviewed. Additionally, the Veteran was provided a proper VA examination in November 2007 to evaluate the current severity of his left ankle disability. An addendum was obtained in December 2010 and December 2011 for clarification of whether there was ankylosis and for interpretation of a private opinion. There is no indication that the service-connected left ankle disability has worsened since the November 2007 VA examination. As such, the Board finds that there is no basis to obtain a more current examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007) (mere passage of time not a basis for requiring of new examination). The issue on appeal was previously before the Board in November 2010, April 2012, and January 2013, when it was remanded for additional development. In accordance with the remand instructions, VA treatment records beginning in 2009 were obtained, the December 2010 and December 2011 VA examination addendums were provided, and the Veteran was requested to identify and provide authorization for all private treatment in a February 2013 letter. A supplemental statement of the case was issued in March 2013. Since the record reflects compliance with the prior remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran maintains that his service-connected left ankle disability is more severe than is represented by the currently assigned 20 percent rating assigned under Diagnostic Code 5271. Upon review of the evidence of record, the Board concludes that a rating in excess of 20 percent for the left ankle disability is not warranted for any time throughout the appellate period. The Veteran's service-connected left ankle disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for marked limitation of motion of the ankle. This is the maximum schedular rating provided under Diagnostic Code 5271. Arthritis due to trauma, substantiated by x-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Other rating criteria addressing ankle impairment require findings of ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2012). Full range of motion of an ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2012). Ankylosis is the "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992). An increased rating of 30 percent is awarded for ankylosis if there is ankylosis in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2011). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. at 85 (1997). There is no basis for an increased rating based on limitation of motion due to any functional loss when the veteran is receiving the maximum schedular rating for limitation of motion. Id. As noted above, the Veteran is receiving the maximum schedular rating available under the currently assigned diagnostic code. The availability of an increased rating in excess of 20 percent is determined in this case based on the presence of ankylosis. Throughout VA and private treatment, the Veteran has reported pain on motion, but he has never been found to have immobility and fixation of the left ankle joint to any degree. The Board notes that a July 2006 letter from a private physician stated that there were posttraumatic changes in the ankle joint and more than 30 percent ankylosis to the left ankle with limited plantar flexion less than 20 degrees. In November 2007, the Veteran was provided with a VA examination where left ankle dorsiflexion and plantar flexion were both possible to 10 degrees and there was no objective evidence of pain on motion. In a December 2010 and December 2011, a VA examiner reviewed the clinical evidence and the July 2006 letter from the private physician. The examiner noted that the Veteran was able to move his ankle both in dorsiflexion and plantar flexion to 10 degrees. Therefore, there was no fixation of the ankle joint resulting in functional impairment. The examiner stated that as there was no evidence of ankylosis, she interpreted the 2006 private physician's statement to mean that there was 30 percent of normal plantar flexion, or plantar flexion to 25 degrees. Private and VA treatment obtained since the VA examination and addendum reports only demonstrate continued treatment for pain. It was clarified in the December 2011 addendum that the ankle was not ankylosed. Based on the foregoing, the Board finds that there is no evidence of ankylosis of record, and therefore, an increased rating under Diagnostic Code 5270 is not warranted. While the 2006 private medical report refers to "30 percent ankylosis", in the same sentence it was added "with limited plantar flexion less than 20 degrees". This suggests that ankle motion was limited and not frozen or fixed. The November 2007 VA examination report also shows motion, albeit limited and the examiner has clarified that the ankle is not ankylosed. Moreover, there is no indication of other symptoms such as malunion of the os calcis or astragalus, astragalectomy, or neurologic impairments related to the service-connected residuals of a left ankle fracture. The Veteran's subjective complaints of pain and flare-ups, notwithstanding, the examination reports and clinical records note that repetitive use did not result in any additional loss of range of motion due to pain, weakness, or fatigue. See 38 C.F.R. §§ 4.40, 4.45. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The effects of pain reasonably shown to be due to the Veteran's service-connected left ankle disability are contemplated in the currently assigned 20 percent rating. Moreover, there is no basis for a rating in excess of 20 percent based on limitation of motion due to any functional loss as the Veteran is receiving the maximum schedular rating for limitation of motion of the ankle. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). All other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, have been considered as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no other basis for assigning a higher schedular rating. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) (2012), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's left ankle disability is manifested by symptoms such as pain and decreased range of motion. These manifestations are contemplated in the relevant rating criteria. The rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for a greater evaluation for additional or more severe symptoms. The rating criteria are, therefore, adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not specifically raised the issue of entitlement to a TDIU as a result of his left ankle disability. At the time of the VA examination, the Veteran was employed full time as a corrections officer. There is no evidence of record suggesting that he is unemployable as a result of his left ankle disability. See 38 C.F.R. § 4.16 (2012). Finally, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. at 505. However, the evidence reflects that the Veteran's symptoms have remained constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. ORDER Entitlement to an increased rating in excess of 20 percent for residuals of a left ankle fracture is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs