Citation Nr: 1327593 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 10-20 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a rating in excess of 20 percent for residuals of a dislocated right talus with traumatic arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, continued a 20 percent evaluation for the Veteran's service-connected right ankle disability. In August 2012, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. The issue of entitlement to an earlier effective date for dependent benefits for the Veteran's spouse was raised by the Veteran in a March 2013 correspondence, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. During the period prior to May 11, 2010, the Veteran's right ankle disability manifested limitation of motion that most nearly approximated marked without ankylosis. 2. During the period from May 11, 2010 to January 10, 2013, the Veteran's right ankle disability manifested ankylosis in dorsiflexion between 0 and 10 degrees. 3. During the period beginning January 10, 2013, the Veteran's right ankle disability manifested ankylosis with abduction, adduction, inversion or eversion deformity. CONCLUSIONS OF LAW 1. For the period prior to May 11, 2010, the criteria for a rating in excess of 20 percent for residuals of a dislocated right talus with traumatic arthritis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, 4.118, Diagnostic Codes 5270-5273, 7800-7805 (2012). 2. For the period from May 11, 2010 to January 10, 2013, the criteria for a rating of 30 percent, but not higher, for residuals of a dislocated right talus with traumatic arthritis are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, 4.118, Diagnostic Codes 5270-5273, 7800-7805. 3. For the period beginning January 10, 2013, the criteria for a rating of 40 percent, but not higher, for residuals of a dislocated right talus with traumatic arthritis are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, 4.118, Diagnostic Codes 5270-5273, 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for residuals of a dislocated right talus with loss of motion and traumatic arthritis was granted in a January 1970 rating decision. An initial 10 percent evaluation was assigned effective October 8, 1969. The October 2009 rating decision on appeal continued a 20 percent evaluation for the service-connected right ankle disability. An increased 30 percent evaluation was granted in a February 2013 rating decision effective January 10, 2013. The Veteran contends that an increased rating is warranted as his right ankle condition is productive of constant pain, functional limitations, and ankylosis. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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 apply 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 careful 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 ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). In applying the rating criteria, 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, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, 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. 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 Veteran's right ankle disability is currently rated as 20 percent disabling during the period prior to January 10, 2013 and 30 percent disabling thereafter. For the period prior to January 10, 2013, the Veteran's disability is rated under Diagnostic Code 5271 pertaining to limitation of motion of the ankle. Under this diagnostic code, a 10 percent rating is assigned for limitation of motion of the ankle that is moderate. A maximum 20 percent rating is warranted for limitation of motion of the ankle that is marked. 38 C.F.R. § 4.71a, Diagnostic Code 5271. 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. For the period beginning January 10, 2013, the Veteran's right ankle is currently rated as 30 percent disabling under Diagnostic Code 5270 for ankylosis of the ankle. Under this diagnostic code, ankylosis of the ankle in planter flexion less than 30 degrees is rated as 20 percent disabling. Ankylosis of the ankle in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, is rated as 30 percent disabling. Ankylosis of the ankle in planter flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity is rated as 40 percent disabling. 38 C.F.R. § 4.71a. After review of the evidence of record, the Board finds that that a 30 percent evaluation is warranted for the Veteran's right ankle disability during the period from May 11, 2010 to January 10, 2013. During a May 2010 orthopedic surgery consultation at the Kansas City VA Medical Center (VAMC), the Veteran's subtalar ankle joint was extremely stiff with no movement. The examining physician concluded that the subtalar joint was, in essence, fused. The ankle joint only demonstrated very slight range of motion with dorsiflexion and plantar flexion from 0 to 10 degrees. Based on these findings and the characterization of the ankle as fused, the Board finds that Veteran's right ankle disability most nearly approximated ankylosis in dorsiflexion between 0 and 10 degrees and a 30 percent evaluation under Diagnostic Code 5270 for the period from May 11, 2010 to January 10, 2013. A rating in excess of 30 percent is not warranted during this period as there is clearly no evidence of ankylosis of the ankle in planter flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or abduction, adduction, inversion, or eversion deformity. Turning to the period prior to May 11, 2010, a rating in excess of the currently assigned 20 percent evaluation is not appropriate. The Veteran's VA treatment records do not document any findings of ankylosis during this period and he clearly manifested useful motion of the right ankle at a VA examination conducted in October 2009. At that time, the Veteran demonstrated range of motion of the right ankle in dorsiflexion from 0 to 20 degrees and in plantar flexion from 0 to 8 degrees. These findings were reported after repetitive testing and with consideration of the Veteran's complaints of pain. The Board has also considered the Veteran's complaints of severe pain and functional limitations. While VA is required to consider functional impairment when evaluating disabilities based on limitation of motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board cannot conclude that the Veteran's disability most nearly approximates ankylosis during the period prior to May 11, 2010 when he clearly retained some useful motion of the right ankle and the joint was not ankylosed. Turning to the period after May 10, 2011, the Board finds that a maximum 40 percent evaluation is warranted under Diagnostic Code 5270 from January 10, 2013, the date of the Veteran's most recent VA examination. The January 2013 VA examiner found that the Veteran's right ankle was clearly ankylosed in plantar flexion less than 30 degrees and in dorsiflexion between 0 and 10 degrees. While these findings are associated with a 20 percent and 30 percent evaluation under Diagnostic Code 5270, the examiner also noted the presence of an abduction, adduction, and inversion or eversion deformity. This manifestation of the disability is contemplated by a maximum 40 percent evaluation under Diagnostic Code 5270. The Board will resolve all doubt in favour of the Veteran and find that his disability most nearly approximates the criteria associated with a 40 percent evaluation under Diagnostic Code 5270 for the period beginning January 10, 2013. This is the maximum rating possible under the diagnostic codes pertaining to the ankle. The Board has also considered whether a separate rating is appropriate for a scar associated with the Veteran's 1968 open reduction and internal fixation (ORIF) surgery to repair the service-connected right ankle disability. A separate rating is warranted for the surgical scar if the evidence establishes the presence of symptoms that are separate and distinct from those stemming from the service-connected residuals of the surgery. Cf. Esteban v. Brown, 6 Vet App 259 (1994). The January 2013 VA examiner noted the presence of a surgical scar, but also found that the scar was not painful or unstable and did not involve an area greater than 39 square centimeters (sq cm). There is also no medical or lay evidence indicating that the scar manifests any limitation of function. A separate rating is therefore not warranted for this aspect of the service-connected disability. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2012). The Board has considered whether there is any other schedular basis for granting a higher rating for the right ankle disability other than those discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the assignment of any additional higher ratings. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The 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 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 ankle disability is manifested by symptoms such as pain, limitation of motion, and ankylosis. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the disability and referral for consideration of extraschedular rating is not warranted. Entitlement to a TDIU is also an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits and has continued to work as a machinist throughout the claims period. The Veteran's disability has some effect on his ability to work (as it limits standing and walking for prolonged periods), but the Veteran has not stated that he has lost any time from work or is unable to perform his duties due to the service-connected right ankle condition. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected residuals of a dislocated right ankle with arthritis. Duties to Notify and Assist 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)) defined VA's duties to notify and assist a veteran in the substantiation 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). 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) and that the claimant is expected to provide. 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). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a September 2009 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the September 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a 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 a 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 and records of VA treatment from the Kansas City VAMC. The Veteran has not identified any other health care providers or facilities that have treated his service-connected right ankle disability. Additionally, the Veteran was provided proper VA examinations in October 2009 and January 2013 in response to the claim for an increased rating. The Board also finds that VA has complied with the August 2012 remand orders of the Board. In response to the Board's remand, treatment records from the Kansas City VAMC dating from August 2008 to July 2012 were added to the Veteran's virtual claims file. He was also provided a VA examination to determine the current severity of the service-connected right ankle disability in January 2013. The case was then readjudicated in a February 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating in excess of 20 percent for residuals of a dislocated right talus with traumatic arthritis during the period prior to May 11, 2010 is denied. Entitlement to a rating of 30 percent, but not higher, for residuals of a dislocated right talus with traumatic arthritis during the period from May 11, 2010 to January 10, 2013 is granted. Entitlement to a rating of 40 percent, but not higher, for residuals of a dislocated right talus with traumatic arthritis during the period beginning January 10, 2013 is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs