Citation Nr: 1327235	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  07-32 433	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an initial disability rating higher than 20 percent for postoperative traumatic arthritis of the left ankle.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Childers, Counsel






INTRODUCTION

The Veteran served on active duty from February 1976 to March 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In his October 2007 substantive appeal, the Veteran requested a videoconference hearing at a local VA office before a member of the Board.  However, in correspondence to the RO dated in November 2007, he withdrew the hearing request. 


FINDING OF FACT

The Veteran's postoperative left ankle traumatic arthritis disability has been manifested by pain and marked limitation of motion throughout the appeal period, but it has not been productive of ankylosis.


CONCLUSION OF LAW

The criteria for an initial disability rating higher than 20 percent for postoperative left ankle traumatic arthritis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

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, and 5126) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).  The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b).  

VCAA notice concerning the Veteran's underlying claim for service connection was provided in May 2006.  However, the appeal arises from the initial award of service connection.  In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that in cases in which 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 section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Thus, VA's duty to notify in this case has been satisfied.  

As regards VA's duty to assist, post service treatment records have been obtained and are in the claims file and the Veteran's electronic Virtual VA file.  The Veteran was also afforded multiple VA examinations.  

The Board also notes that actions requested in the prior remand have been undertaken to the extent possible.  The Veteran was accorded a VA examination of his left ankle and the Veteran was asked to identify all treatment providers who have treated his left ankle in a September 2011 letter.  Neither the Veteran nor his representative provided any additional information.  Accordingly, the Board finds that there has been compliance with the prior remand instructions and no further action is necessary.  See, generally, D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Facts

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In a rating decision dated in August 2006, the RO granted service connection for postoperative left ankle traumatic arthritis under the provisions of Diagnostic Code 5271 and assigned a 20 percent rating effective March 28, 2006.  The Veteran has appealed for a higher initial rating.

On VA examination in July 2006, the Veteran complained of progressively worsening pain, weakness, morning stiffness, swelling, heat, instability, giving way, locking, and abnormal motion in the left ankle and said that he had used crutches, a cane, and a brace at various time, but no special shoes.  He also complained of right ankle pain, and said that he was no longer able to run or use a treadmill, and that his daily life was affected because his ambulation was limited to approximately a quarter of a mile.  He added that he was working, and occasionally missed work.  The examiner observed that the Veteran walked with "bilaterally short paced gait."  Physical examination of the left ankle found no swelling, but there was pain with dorsiflexion, plantar flexion, inversion, and eversion of the left ankle.  Range of motion testing found dorsiflexion to neutral and plantar flexion to 20 degrees.  There were no calluses on the left foot or ankle; no evidence of malunion or rotational injury; no evidence of shortening; and no evidence of ankylosis.  X-rays showed narrowing of the ankle joint space in the tibiotalar joint.  Diagnosis was traumatic arthritis, left ankle, postoperative.

A private medical record dated in December 2006 relates the Veteran's complaints of tenderness in the scar area of his previous open reduction internal fixation surgery.  He reported that he wore an elastic anklet on a daily basis and an ankle support system on a period basis.  He added that his only exercise was riding a stationary bike or walking, and said that he was no longer able to play softball or coach soccer.  He also reported that his job required full time standing, which was difficult for him.  Physical examination found slight deficits at the extremes of rotation, flexion, and the extension arc, and tenderness in the anterior ankle instep.  

A private medical record dated in October 2007 relates complaints of chronic bilateral ankle pain, worse on the left; with swelling, difficulty walking, and weakness in the left lower extremity.  The Veteran also reported that he was unable to walk more than 150 feet without significant pain in the left ankle.  Physical examination found joint range of motion in the ankle distally within normal limits, but there was pain and crepitus, effusion, and tenderness to palpation in the left ankle and subtalar joint.  According to the provider, the Veteran suffered from permanent left ankle osteoarthritis, with chronic pain and difficulty walking, which in turn limited the Veteran's personal and recreational activities.

On VA examination in September 2011, the Veteran complained of pain on ambulation, and reported that he occasionally used a cane and crutches.  He reported that he worked as a team leader at a military facility, and that he occasionally had difficulty making his rounds at work.  He added that he was unable to run, and that exercise was limited.  Physical examination of the left ankle found no swelling, but there was pain with dorsiflexion, plantar flexion, inversion, and eversion of the left ankle.  Range of motion testing found plantar flexion to 10 degrees, with pain beginning at 10 degrees; and left ankle plantar dorsiflexion to 10 degrees, with pain beginning at 10 degrees.  There was no additional limitation of motion after repetitive use, but there tenderness to palpation, and functional loss due to pain, excess fatigability, and weakness in the left ankle.  The examiner reiterated that there was "moderate functional loss due to extended use."  There was no ankylosis.

Applicable Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59.  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 (2011).  Moreover, once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Arthritis due to trauma, substantiated by X-ray findings, will be rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010.  Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (38 C.F.R. § 4.71a, Diagnostic Code 5003) which, in this case, is the left ankle.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274.  

The Veteran's left ankle disability has been rated under the provisions of Diagnostic Code 5271 throughout the appeal period.  Under Diagnostic Code 5271, a 10 percent disability rating requires moderate limited motion of the ankle.  A 20 percent disability rating, which is also the maximum evaluation available under Diagnostic Code 5271, requires marked limited motion of the ankle.  38 C.F.R. § 4.71a, Diagnostic Code 5271.  

Normal range of motion for the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion.  38 C.F.R. § 4.71, Plate II

When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Analysis

As an initial matter, the Board notes that the Veteran is already in receipt of a separate rating for his a left ankle surgical scar.  Thus, the manifestations of this disability are not for consideration in evaluating his postoperative traumatic arthritis of the left ankle.  38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided).

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's left ankle disability is appropriately evaluated as 20 percent disabling, the maximum evaluation available under Diagnostic Code 5271 for limitation of motion of the ankle.  The competent and probative evidence of record reflects that, though ambulatory, the Veteran's left ankle disability has been productive of marked pain and limitation of motion throughout the appeal period.  38 C.F.R. § 4.71a, Diagnostic Code 5271.  

In reaching this conclusion the Board has considered whether a higher schedular rating of 30 percent under other potentially applicable schedular criteria is warranted.  Although Diagnostic Code 5270 provides for a higher rating, the Veteran's left ankle disability has not been productive of ankylosis at any time during the appeal period, so evaluation under that criteria is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5270.  In this regard, at no time has the Veteran's ankle been frozen in one position; rather, he has always had some motion in his left ankle.  In addition, the evidence does not reflect that the Veteran has malunion or nonunion of the tibia or fibula.  Thus, Diagnostic Code 5262 is not for application.  

In sum, the symptomatology noted in the medical and lay evidence has been adequately addressed by the 20 percent evaluation already assigned under Diagnostic Code 5271, and does not more nearly approximate the criteria for a higher schedular rating for ankylosis at any time during the appeal period.  See 38 C.F.R. § 4.71a, Diagnostic Code 5270.  The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his left ankle disability.  The Board accordingly finds that the weight of the evidence is against the claim for a schedular rating higher than 20 percent during the course of the claim.  

The Board has also considered whether the Veteran's left ankle disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria, along with 38 C.F.R. §§ 4.40, 4.45 and 4.59, reasonably describe the Veteran's disability level and symptomatology, and provide for a higher rating for more severe symptomatology (ankylosis or malunion of the tibia or fibula) than is shown by the evidence.  Thus, the Board finds that the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

Moreover, while the Veteran reports that he occasionally misses work, there is no allegation or evidence of any excessive absenteeism due to his left ankle disability, and the Veteran remains engaged in substantially gainful employment.  Thus, even if there are factors not considered by the rating schedule, marked interference with employment is not shown, nor does the record reflect frequent periods of hospitalization.  In sum, referral for extraschedular consideration is not warranted.

In reaching the above 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, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to an initial disability rating higher than 20 percent for postoperative left ankle traumatic arthritis is denied.




____________________________________________
K. A. BANFIELD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs