Citation Nr: 1326809 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-06 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 20 percent for service-connected residuals of fracture, right ankle, with degenerative joint disease, prior to August 17, 2012; and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to February 1970. This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which increased the rating assigned to the Veteran's right ankle disability to 20 percent, effective May 5, 2008. By a September 2012 rating decision, the rating assigned to the Veteran's right ankle disability was increased to 30 percent, effective August 17, 2012. As the 30 percent rating is less than the maximum available rating, and as there remains a period of time during which the 30 percent rating was not in effect, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal, specifically, the July 2013 statement of the Veteran's representative. FINDINGS OF FACT 1. Prior to August 17, 2012, the Veteran's service-connected residuals of fracture, right ankle, with degenerative joint disease, were manifested by marked limitation of motion, without ankylosis of the ankle, subastralgar or tarsal joint. 2. Since August 17, 2012, the Veteran's residuals of fracture, right ankle, with degenerative joint disease, are manifested by marked limitation of motion, with only ankylosis of the subastralgar or tarsal joint. CONCLUSIONS OF LAW 1. Prior to August 17, 2012, the criteria for a disability rating in excess of 20 percent for service-connected residuals of fracture, right ankle, with degenerative joint disease, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107, 5110(b), 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.400(o)(2), 4.1, 4.6, 4.7, 4.71a, Diagnostic Code (DCs) 5270, 5271, 5272 (2012), 20.1103. 2. Since August 17, 2012, the criteria for a disability rating in excess of 30 percent for service-connected residuals of fracture, right ankle, with degenerative joint disease, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107, 5110(b), 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.400(o)(2), 4.1, 4.6, 4.7, 4.71a, DCs 5270, 5271, 5272 (2012), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice informs the claimant, prior to the initial unfavorable decision on the claim by the Agency of Original Jurisdiction (AOJ), of any information and evidence not in the 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. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA notice requirements apply to all five elements of a service connection claim, including: (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). Only "generic notice," and not "Veteran-specific" notice is required under 38 U.S.C.A. § 5103(a) in response to the "particular type of claim." See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). With respect to a claim for an increased rating, such notice does not need to inform the claimant of the need to submit evidence concerning the effect of a service-connected disability on his or her "daily life" because only the average loss of earning capacity, and not impact on daily life, is subject to compensation under 38 U.S.C. § 1155. Accordingly, there is no requirement that VA must notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. Id. In this case, the Veteran was advised in a June 2008 letter, sent prior to the initial adjudication of his claim in September 2008, of the evidence and information necessary to substantiate his claim, and the responsibilities of the Veteran and VA in obtaining such evidence. The Veteran was specifically advised that the evidence must show that his disability had increased in severity, examples of types of lay or medical evidence that would substantiate such claim, and that he should provide any VA or private treatment records or provide sufficient information to allow VA to obtain such records. The Veteran was specifically advised of the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman, and he was specifically advised of the diagnostic code under which his disability was rated. With regard to the duty to assist, the Veteran did not authorize VA to obtain his private treatment records. At the time of his May 2008 claim, he noted past treatment by Dr. Hilliard. The RO, in its June 2008 VCAA letter, requested that he compete an enclosed VA Form 21-4142, Authorization and Consent to Release Information to VA, to allow VA to obtain Dr. Hilliard's records. The Veteran did not authorize VA to obtain Dr. Hilliard's records. At the time of the December 2009 Statement of the Case (SOC), the RO informed the Veteran that they had provided him a VA Form 21-4142 in June 2008, and that they had received the Veteran's September 2009 Notice of Disagreement (NOD) wherein he reported that he had evidence to support his claim. The RO informed the Veteran that, to date, no additional evidence had been submitted. The duty to assist the Veteran with this claim is not a one-way street. If the Veteran wishes help in developing his claim, in this case, obtaining any relevant private treatment records, he cannot passively wait for assistance in those circumstances where he may or should have information that is essential in obtaining putative evidence, in this case, a completed authorization in favor of Dr. Hilliard. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran was afforded VA examinations in July 2008 and August 2012. The resulting medical evaluations are considered adequate for rating purposes as they are based on consideration of the Veteran's medical history and describe the relevant disability in sufficient detail to enable the Board to reach a fully informed decision. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran in accordance with the VCAA at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by the Board proceeding to the merits of his claim. Increased Disability Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Service connection for a right ankle disability was granted by a May 1970 rating decision, and such was assigned an initial 10 percent rating, effective February 17, 1970. The Veteran did not file a NOD with the May 1970 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the May 1970 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The issue on appeal arises from a claim for an increased rating received on May 5, 2008. Thus, the relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed; in this case, May 5, 2007, until VA makes a final decision on the claim. See Hart, supra; 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). By the September 2008 rating decision on appeal, the Veteran's right ankle disability was rated as 20 percent disabling under DC 5270, contemplating limitation of motion of the ankle, effective May 5, 2008; and by a September 2012 rating decision, the rating was increased to 30 percent under DC 5270, contemplating ankylosis of the ankle, effective August 17, 2012. 38 C.F.R. § 4.71a, DCs 5270, 5271. DC 5270 provides for a 20 percent rating where there is ankylosis of the ankle, in plantar flexion, less than 30 degrees. A 30 percent rating contemplates ankylosis of the ankle, in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees. A maximum 40 percent rating 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. 38 C.F.R. § 4.71a, DC 5270. DC 5271 provides for a 10 percent rating where there is moderate limitation of motion of the ankle, and a maximum 20 percent evaluation for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. For VA purposes, normal plantar flexion of the ankle is from 0 to 45 degrees and normal dorsiflexion of the ankle is from 0 to 20 degrees. 38 C.F.R. § 4.71a, Plate II (2012). Words such as "moderate," "moderately severe" and "severe" 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. Potentially applicable is DC 5272, contemplating ankylosis of the subastralgar or tarsal joint, and providing a 10 percent rating for such in good weight-bearing position and a maximum 20 percent rating for such in poor weight-bearing position. 38 C.F.R. § 4.71a, DC 5272. In considering the applicability of other diagnostic codes, the Board finds that DCs 5273 and 5274, which contemplate malunion of the os calcis or astragalus, and astragalectomy, respectively, are not applicable as at no time during the course of the appeal has the Veteran demonstrated or reported such. 38 C.F.R. § 4.71a, DCs 5273, 5274 (2012). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2012). However, as will be discussed below, the Veteran's right ankle disability has been manifested by compensable limitation of motion during the entire appellate period. Thus, further consideration of the diagnostic criteria contemplating arthritis is not required. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 (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). However, consideration of 38 C.F.R. § 4.40 and § 4.45, and the accompanying case law, are not for application when the Veteran's disability is already rated at the maximum rating for limitation of motion. Johnston v. Brown, 10 Vet. App. 80 (1997). As will be discussed below, the Veteran's right ankle disability warrants a 20 percent rating under DC 5271, contemplating limitation of motion of the ankle, during the entire appellate period, notwithstanding the 30 percent rating awarded by the RO under DC 5270, contemplating ankylosis of the ankle. 38 C.F.R. § 4.71a, DCs 5270, 5271. As 20 percent is the maximum available rating for limitation of the motion of the ankle under DC 5271, consideration of 38 C.F.R. § 4.40 and § 4.45, and the accompanying case law, is not required. Medical and Lay Evidence At the time of his May 2008 claim, the Veteran reported that he experienced constant swelling, pain, and loss of motion; and complained that he could not walk for long distances. On VA examination in July 2008, the Veteran reported swelling, pain, and limited motion. He reported the use of over-the-counter pain medication, with varied results. He reported that he did not use an assistive device, and denied any flare-ups. He noted that while he had to quit work as a mechanic and security personnel, he was working as an actor. The Veteran's activities of daily living were affected in that he could not run and could not walk without experiencing severe pain, resulting in limping. Physical examination revealed an antalgic gait on the right, with moderate swelling in the right ankle and foot area. He demonstrated "very" limited right ankle motion and exhibited dorsiflexion and plantar flexion to less than 5 degrees each, with pain throughout. There was no palpable effusion, instability, or negative drawer sign. There was increased pain with repetitive motion, without further loss of motion, and no effect on incoordination, fatigue, weakness, lack of endurance, or function. X-ray examination revealed severe degenerative arthritis. In his February 2010 Substantive Appeal, the Veteran reported severe weakness, fatigue, swelling, and pain on a daily basis, and asserted that such has an adverse affect on his endurance and function of the right ankle, resulting in restricted motion and instability. On VA examination in August 2012, the Veteran reported gradually increasing symptoms over the years and noted chronic generalized pain of the right ankle, with generalized edema and limited range of motion. He presented with the use of an assistive device, a cane; and reported pain on standing and walking over five minutes, and complained that he was unable to squat or kneel. He reported flare-ups, with increased pain with standing and walking, and denied incapacitation. There was localized tenderness or pain on palpation of the right ankle. There was 4/5 muscle strength in plantar flexion and dorsiflexion. There was laxity during the anterior drawer test and talar tilt test. He demonstrated 5 degrees of plantar flexion and dorsiflexion, with pain throughout. He was able to complete repetitive testing, and demonstrated five degrees of plantar flexion and zero degrees of dorsiflexion. His functional loss and impairment after repetitive testing included less movement than normal, weakened movement, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The examiner determined that the Veteran had ankylosis of the ankle, subtalar or tarsal joint, and noted such only in good weight bearing position. There was no malunion of the os calcis or talus and no history of astralectomy. The examiner determined that the Veteran's functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner determined that the Veteran's right ankle disability impacted his ability to work in that he was unable to stand or walk for prolonged periods, however, he was able to engage in sedentary sitting work. Analysis Prior to August 17, 2012, the Veteran demonstrated motion of the right ankle, in plantar flexion and dorsiflexion, of less than 5 degrees, with pain throughout. The Veteran is competent to report pain, instability, swelling, and weakness, with subsequent lack of endurance, strength, and motion; and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, at 470. However, DC 5271, contemplating limitation of motion of the ankle, may not serve as a basis for an increased rating, a rating in excess of 20 percent during this period; as DC 5271 provides a maximum 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. As discussed above, as the Veteran's disability is already rated at the maximum rating for limitation of motion, the Board need not consider the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the accompanying case law. Johnston, 10 Vet. App. 80. While there is evidence of painful limited motion, described as "very" limited by the examiner, there is no evidence of ankylosis of the ankle, and thus DC 5270, contemplating such, may not serve as a basis for an increased rating. 38 C.F.R. § 4.71a, DC 5270. DC 5272, contemplating ankylosis of the subastragalar or tarsal joint, provides a maximum 20 percent rating for ankylosis in poor weight-bearing position; thus, as the Veteran is already in receipt of a 20 percent rating prior to August 17, 2012, even if there was evidence of such ankylosis, DC 5272 may not serve as a basis for an increased rating. 38 C.F.R. § 4.71a, DC 5272. Since August 17, 2012, the Veteran demonstrated motion of the right ankle, in plantar flexion and dorsiflexion, of five degrees, with pain throughout. The Veteran is competent to report pain and swelling, with non-incapacitating flare-ups, and subsequent lack of motion; and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, at 470. However, DC 5271, contemplating limitation of motion of the ankle, may not serve as a basis for an increased rating, a rating in excess of 30 percent during this period; as DC 5271 provides a maximum 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. As discussed above, as the Veteran's disability is already rated at the maximum rating for limitation of motion, the Board need not consider the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the accompanying case law. Johnston, 10 Vet. App. 80. While there is evidence of an antalgic gait, decreased muscle strength, tenderness to palpation, edema, and laxity, there is no evidence of ankylosis of the ankle. The VA examiner, in August 2012, determined that there was ankylosis of the ankle, subastralgar or tarsal joint and specifically reported only ankylosis in good weight-bearing position. Ankylosis, in good weight-bearing position, is specifically contemplated by the criteria pertaining to ankylosis of the subastralgar or tarsal joint. 38 C.F.R. § 4.71a, DC 5272. The examiner was provided an opportunity in the examination report to note ankylosis of the ankle: (a) in plantar flexion, less than 30 degrees, or (b) ankylosis of the ankle, in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees, or (c) 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, as contemplated by the criteria pertaining to ankylosis of the ankle joint. 38 C.F.R. § 4.71a, DC 5270. Ankylosis to such an extent was not shown or reported. Thus, without evidence of ankylosis of the ankle, DC 5270, contemplating such, may not serve as a basis for an increased rating. 38 C.F.R. § 4.71a, DC 5270. DC 5272, contemplating ankylosis of the subastragalar or tarsal joint, provides a maximum 20 percent rating for ankylosis in poor weight-bearing position; thus, as the Veteran is already in receipt of a 30 percent rating as of August 17, 2012, even if there was evidence of such ankylosis, in poor weight-bearing position instead of good weight-bearing position, DC 5272 may not serve as a basis for an increased rating. 38 C.F.R. § 4.71a, DC 5272. In sum, the Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505. However, the Board finds that the lay and medical evidence of record demonstrates that prior to August 17, 2012, a rating in excess of 20 percent is not warranted; and since August 17, 2012, a rating in excess of 30 percent is not warranted. As the preponderance of the evidence is against the Veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The United States Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular 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 extraschedular 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 relevant rating criteria in the present appeal contemplate ankylosis and limited motion. The Veteran has reported, competently and credibly, and demonstrated, other symptoms related to his right ankle disability, including pain, swelling, weakness, laxity, instability, tenderness, an antalgic gait, and decreased muscle strength. While these symptoms result in the limited motion and ankylosis contemplated by the rating criteria, it remains that such symptoms are not specifically considered. Thus, the Board must conclude that the rating criteria do not adequately contemplate the Veteran's level of disability and symptomatology. However, there is no evidence of an exceptional or unusual disability picture, as there is no evidence of marked interference with employment or frequent periods of hospitalization. While the Veteran has had to stop work as a mechanic and security personnel due to his right ankle disability, he reported, during VA examination in July 2008 that he was working as an actor. While the VA examiner, in August 2012, determined that the Veteran's right ankle disability impacted his employment in that he could not stand or walk for prolonged periods, sedentary sitting work was not impacted. The Board finds that preclusion from physical labor is thus not marked interference with employment. During the appellate period, there is no evidence of any hospitalization, much less frequent periods of such. As there is no indicia of an exceptional or unusual disability picture, the second prong of the Thun test is not met and the Board need not consider wither the award of an extraschedular disability rating must be in the interest of justice. Thus, referral for consideration of an extraschedular rating is not warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board also finds that a claim for a TDIU is not raised by the record as the evidence of record fails to show that the Veteran is unemployable due to his right ankle disbality. Rice, 22 Vet. App. 447. As noted above, at the time of the July 2008 VA examination, the Veteran reported that while he had to quit working as a mechanic and security personnel due to his right ankle disability, he was working as an actor. At the time of the August 2012 VA examination, the examiner reported that while the Veteran's right ankle disability prevented him from standing or walking for prolonged periods, he was able to engage in sedentary sitting work. The Veteran has not claimed or submitted any evidence that his right ankle disability renders him unemployable. Therefore, the Board finds that no further consideration of a TDIU is warranted. ORDER Prior to August 17, 2012, a disability rating excess of 20 percent for service-connected residuals of fracture, right ankle, with degenerative joint disease, is denied. Since August 17, 2012, a disability rating in excess of 30 percent for service- connected residuals of fracture, right ankle, with degenerative joint disease, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs