Citation Nr: 1327152 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-24 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a disability rating higher than 10 percent for residuals of a right ankle sprain. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1977. This matter comes to the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, in which the RO denied the benefits sought on appeal. A notice of disagreement was filed in January 2009, a statement of the case was issued in June 2009, and a substantive appeal was received in July 2009. FINDING OF FACT The residuals of a right ankle sprain is manifested by a disability equating to no worse than moderate limitation of motion. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for residuals of a right ankle sprain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In June 2007, a VCAA letter was issued to the Veteran with regard to his increased rating claims; this letter predated the January 2008 rating decision. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim, the information and evidence that must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish an effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's VA outpatient treatment records. He underwent VA examinations in November 2007 and May 2012 with regard to his right ankle sprain. The Board finds that such examination reports are thorough and contain sufficient information to decide the increased-rating issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). This is so despite the contentions of the Veteran's representative, made in a July 2013 statement, that the Veteran should be provided a new VA examination because the most recent VA examination is now over one year old. In this case, neither the Veteran nor his representative has made any allegation that the residuals of a right ankle sprain has worsened since the May 2012 VA examination; thus, the Board finds no reason to assume that the May 2012 VA examination is inadequate. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Veteran has not otherwise identified any records relevant to the claim on appeal. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis The Veteran contends that residuals of a right ankle sprain is more disabling than is reflected by the 10 percent disability rating currently assigned. Relevant evidence of record consists of VA examinations conducted in November 2007 and May 2012, as well as records of ongoing treatment the Veteran has obtained from VA treatment providers. Report of the November 2007 VA examination reflects that he complained of weakness, stiffness, and swelling in his right ankle, as well as an aching pain in the joint. The examiner observed a normal posture, gait, and weight bearing. Physical examination revealed weakness and tenderness to palpation in the right ankle. Range of dorsiflexion was to 10 degrees and plantar flexion was to 20 degrees with pain at the endpoints of motion. Repetitive motion increased the Veteran's pain and weakness and decreased his endurance. Radiological study of the ankle revealed exostosis of the right medial malleolus, and the examiner diagnosed the Veteran with right ankle exostosis. Report of the May 2012 VA examination of the Veteran's right ankle reflects the Veteran's complaints of chronic pain in the ankle, with no flare-ups. On physical examination, no ankylosis or deceased muscle strength was noted. The examiner noted no tenderness to palpation, laxity, or pain. The Veteran's range of motion was initially noted as dorsiflexion to 20 degrees and plantar flexion to 45 degrees without pain and with no additional functional limitations on repetitive motion. However, the examiner also indicated that the Veteran experienced some limitation of motion of the right ankle. Thus, in April 2013, the examiner issued an addendum opinion in which he clarified that the Veteran's plantar flexion of the right ankle was in fact limited to 40 degrees. Radiological evaluation indicated soft-tissue calcifications medially, consistent with an old injury. The examiner found that the Veteran right ankle sprain impacts his ability to work in that he develops increased pain in the ankle on prolonged standing and walking. However, the examiner did not find that the disorder prevents the Veteran from working. Treatment records from the Veteran's VA treatment provider reflect that he has been seen on multiple occasions for complaints of pain in his right ankle. At a treatment visit in February 2007, he complained of "mild ... on and off ankle pain." Similarly, he made complaints of right ankle pain on multiple occasions in 2011. At an August 2011 treatment visit, he was noted to have normal sensory and neurological evaluations and was prescribed an ankle brace. At a visit in May 2012, he complained that right ankle pain was worsened with prolonged standing, walking, and driving a bus. Physical examination revealed pain in the ankle but a normal sensory and motor examination. Similarly, in May 2013, the Veteran was found to have slight swelling and tenderness to palpation of the right ankle, along with some unspecified limitation of motion. At a follow-up visit in June 2013, he was noted to use a cane to assist with ambulation but was found to have a normal ankle on radiological evaluation. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, and VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use). See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In its January 2008 rating decision, the RO evaluated the Veteran's right ankle sprain in accordance with the criteria set forth in Diagnostic Code 5271, governing limited motion of the ankle. The Board notes at the outset that "right ankle sprain" does not have a specified Diagnostic Code under the rating schedule. 38 C.F.R. Part 4. Nevertheless, when an unlisted condition is encountered, it is permissible to rate it under a closely related disease or injury to which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). In that connection, the Board notes that diagnostic criteria analogous to the Veteran's disability are found in Diagnostic Code 5271, which covers limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion. A 20 percent rating is warranted for marked limitation of motion. The Board notes that a 20 percent rating is the highest rating available for limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). A higher rating is warranted only for ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2012). Here, following its review of the medical evidence of record, the Board finds that, for the entirety of the appeal period, the residuals of the right ankle sprain warrants no more than the 10 percent disability rating already assigned. As the 10 percent rating has been assigned for the entire period of the claim, a higher schedular rating is not warranted for limited motion. In so finding, the Board notes that the most recent examination, in May 2012, revealed a full range of dorsiflexion without pain or limitation on repetition and no swelling, instability, or tenderness. Limitation of plantar flexion was to 40 degrees without pain on motion. Further, although the May 2012 examiner noted that the Veteran's right ankle disorder impacts his work in that his pain is increased on prolonged standing and walking, there has been no indication at any point during the appeal period that the right ankle disorder has rendered the Veteran unable to work. Range-of-motion testing has revealed, at worst, dorsiflexion to 10 degrees and plantar flexion 20 degrees with pain only at the endpoints of motion. No ankylosis of the ankle has been found at any time during the appeal period. As there is no medical evidence of record suggesting that the symptoms caused by right ankle sprain equate to worse than moderate limitation of motion, a higher rating is not warranted, and has not been at any time from the inception of the claim. In sum, the evidence of record shows that, for the entirety of the claim period, a rating higher than the currently assigned 10 percent for the Veteran's right ankle sprain is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board has considered the Veteran's contentions with regard to his claim for a higher rating for his right ankle disability. Although the Board does not doubt the sincerity of the Veteran's belief that his disability is more severely disabling than reflected in the current rating, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The statements from the Veteran clearly articulate the symptoms and troubles he experiences; however, even with consideration of those problems, a higher rating is not warranted under the pertinent criteria, and as noted above, his disability has not reached the level of ankylosis. The above determination is based upon consideration of applicable rating provisions. For all the foregoing reasons, the Board finds that the claim for a disability rating higher than 10 percent for the Veteran's service-connected right ankle sprain must be denied. This is so for the entirety of the appeal period. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The above determinations are based on consideration of the applicable provisions of VA's rating schedule. The Board finds that at no time has the disability under consideration been shown to be so exceptional or unusual as to warrant the referral for consideration of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected right ankle sprain, without consideration of other disabilities, has rendered impractical the application of the regular schedular standards. Furthermore, his symptoms are all contemplated by the criteria discussed above. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). It bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claim that is not contemplated by the rating schedule. The very symptoms the Veteran experiences are addressed by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). Right ankle sprain has not required frequent inpatient care or caused marked industrial impairment. As a result, the Board concludes that a remand for referral of the rating issue to the VA Central Office for consideration of extra-schedular evaluation is not warranted. ORDER Entitlement to a disability rating higher than 10 percent for residuals of a right ankle sprain is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs