Citation Nr: 1330809 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-48 524 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 20 percent for a right ankle disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1957 to October 1960 (and had subsequent National Guard service). This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Philadelphia, Pennsylvania VARO that granted service connection for residuals of a right ankle strain, rated 20 percent, effective November 4, 2009 (the date of claim). In February 2011, a Travel Board hearing was held before the undersigned; a transcript of that hearing is associated with the claims file. The case was before the Board in May 2011, when it was remanded for further development. The Veteran submitted an October 2010 medical record and alleged right foot pain from his right ankle disability/injury in service. It is not clear whether he is raising a claim of secondary service connection for a right foot disability. The matter is referred to the RO for clarification/appropriate action. FINDINGS OF FACT 1. The Veteran's right ankle disability is manifested by impairment no greater than marked limitation of motion; the ankle is not ankylosed. 2. All symptoms and associated impairment of the Veteran's residuals of a right ankle strain are encompassed by the criteria for the (maximum) schedular 20 percent rating assigned; an exceptional or unusual disability picture rendering the application of the regular schedular standards impractical is not shown. CONCLUSION OF LAW A rating in excess of 20 percent for the Veteran's residuals of a right ankle strain is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321,4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5270, 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A December 2006 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The appellant has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. At the Travel Board hearing the Veteran was advised that his right ankle was assigned the maximum schedular rating for ankle disability based on limitation of motion, and that to establish entitlement to a higher rating he would have to show impairment or pathology that was not encompassed by the criteria in that Code. The Veteran's service treatment records are associated with the record; he has not identified any pertinent treatment records for VA to secure. The RO arranged for examinations of the Veteran's ankle in January 2010 and June 2011. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussions of the pertinent history and features of the right ankle disability to provide probative medical evidence adequate for rating purpose. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record, as it stands, includes adequate competent evidence to allow the Board to decide this matter and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(a). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Factual Background Initially, the Board notes that all of the evidence in the Veteran's claims file and Virtual VA, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service treatment records show that the Veteran fractured his right distal fibula (lateral malleolus) on active service in July 1975. On January 2010 VA examination the Veteran reported right ankle pain "that can last from 2 hours to all day," as well as stiffness and swelling, but denied weakness, heat, redness, locking, fatigability, or lack of endurance. He stated that his ankle sometimes gives way, but that he did not use any assistive devices. He reported flare-ups of ankle pain "about 2-3 times a week in which he gets short periods of increased pain." "His ankle [did] not interfere with his ability to do his job [and he was] able to walk up to 2 blocks and climb one flight of stairs." Range of motion studies showed dorsiflexion, plantar flexion, and inversion were 0 to 10 degrees without pain. Eversion was 0 to 5 degrees without pain. On repetition, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. There was mild bony enlargement of the right ankle and no pedal edema. The Veteran walked with a slightly antalgic gait. The diagnosis was right ankle strain with decreased range of motion and pain as described. On evaluation for complaints of right foot pain by a private podiatrist in October 2010, with respect to right ankle symptomatology, the provider M. S. R., D. P. M., noted a medial bulge at the posterior tibial tendon area, "significantly diminished" range of motion, moderate bilateral ankle edema, and "a total lack of plantar flexion and inversion of the right foot." Dr. M. S. R. commented that the Veteran's combined right foot and ankle symptoms were not so severe as to warrant surgery. On November 2010 examination by a private chiropractor the Veteran reported, inter alia, a medical history of fractured right ankle and medial ligament injury, resulting in pain for seven hours a day that occasionally radiated into the shin, increased pain on driving for work, and difficulty walking up steps. In his December 2010 substantive appeal, the Veteran reported that he was in constant pain due to his right ankle disability. At the February 2011 Travel Board hearing, the Veteran testified that his condition had worsened. Specifically, he contended that he does not "have control of the right foot going up the steps," that he stumbles when going up and down stairs, that the pain is so great that "on certain times of the month . . . I can barely walk," and that his right ankle disability interferes with employment. He stated that he had developed arthritis in his right ankle over the past three years. On remand, the Veteran was asked to provide a statement outlining the functional restrictions associated with his right ankle disability and the resulting impairment of function as to employment and every day activities. In a statement dated June 13, 2011, he that his ankle condition "prevents him from climbing stairs at work and at home. [He] drives to work on a daily basis and his ankle joint stiffens and he has a hard time moving his driving foot from the accelerator to the brake pedal." On June 2011 VA medical examination the examiner noted that the record was reviewed. On examination, the Veteran reported "that he has pain every day, all day. The level of pain is at a low level of an ache. He denies weakness, heat, redness, locking. He does have fatigability because of the right ankle. His ankle does not give way." He reported using Motrin "very rarely . . . if the pain is very severe" and using "a cane to stabilize his gait [but] does not have crutches, walker, or brace." Range of motion studies revealed dorsiflexion and plantar flexion of the right ankle were each 0 to degrees, with pain beginning at 10 degrees. The examiner also noted that there was no "giving way". As to functional impairment, the examiner reported that "[t]here is no interference with his ability to do his activities of daily living because of his right ankle." The Veteran described his work duties and the examiner reported no "impairment in his ability to do this work because of his right ankle." The examiner recorded the Veteran's description of his functional limitations, noting that he is able to walk approximately 2 blocks before he needs to rest. Walking up stairs is difficult because of increased pain, but he is able to climb 1 flight of steps. He can stand for approximately 5 minutes before he needs to change positions because of right ankle pain. He is not limited with sitting. He no longer runs, jumps, or climbs. There have been no flare-ups of his right ankle pain. Instability of the knee does not apply. The examiner noted that the Veteran worked, walking senior citizens, and used a cane to stabilize gait. Range of motion on repetition was tested, and was "not additionally limited by pain, fatigue, weakness, or lack of endurance." The diagnosis was chronic right ankle strain with decreased range of motion. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 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 code, the higher rating 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 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40. Here, the Veteran avers that his right ankle disability is more disabling than reflected by a 20 percent rating. The RO has rated the Veteran's right ankle disability under Code 5271 (for limitation of ankle motion). Code 5271 provides for a 10 percent rating for moderate limitation of ankle motion and a (maximum) 20 percent rating for marked limitation of ankle motion. 38 C.F.R. § 4.71a. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's right ankle disability is currently rated 20 percent under Code 5271 (for limitation of motion). Such rating is assigned for when there is marked limitation of motion, and is the maximum rating provided under that code. Higher ratings (30 and 40 percent) are provided under Code 5270 (for ankylosis). However, the Veteran's right ankle is not shown to be ankylosed. In that regard the Board notes the October 2010 report of the Veteran's private podiatrist who reports the Veteran had total lack of plantar flexion in the right lower extremity (and only 5 degrees of dorsiflexion (suggesting a disability picture approximating ankylosis). However, those findings are inconsistent with the reports of VA examinations prior to that evaluation and subsequently, in June 2011 (both finding 0-10 degrees of dorsiflexion and plantar flexion) . The Board finds those examination reports to have greater probative value, as the level of impairment described is more consistent with the Veteran's level of activity shown (he works walking senior citizens, albeit with a cane and an antalgic gait, but without brace). That Board has also considered other codes pertaining ratings for ankle disability. However, 20 percent is the maximum rating under such codes (and the Veteran does not have the pathology required, i.e., postoperative status, malunion, or nonunion). See Codes 5272, 5273, and 5274. 38 C.F.R. § 4.71a. The Veteran has testified that his podiatrist found he has arthritis of the right ankle. As arthritis is rated based on limitation of motion, any disability due to arthritis in the ankle is encompassed in the rating currently assigned. See 38 C.F.R. § 4.71a, Codes 5003, 5010. The Veteran also testified regarding foot disability; such pathology is not service-connected, and may not be considered in rating the ankle disability. [An inferred claim of service connection for a foot disability has been referred to the RO for clarification/action.] The Board has considered whether referral of this issue for extraschedular consideration is indicated. The Board notes the Veteran has provided conflicting subjective reports as to whether he has instability in his right ankle (on January 2010 VA examination he reported that his ankle "sometimes gives way" and on June 2011 VA examination he denied weakness, fatigability and indicated that his ankle "does not give way"). There is no objective evidence of right ankle instability. Nevertheless, any such instability would be encompassed in the "marked" level of his disability. In short, there is no evidence that the right ankle disability is manifested by symptoms or impairment not encompassed by the schedular criteria. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the record shows that the Veteran is employed, albeit part-time. It has not been alleged (or suggested by the record) that his ankle disability currently, or during the rating period on appeal, prevents him from engaging in gainful employment (and the June 2011 VA examiner so indicated). Hence, the matter of entitlement to a TDIU rating is not raised in the context of the instant claim for increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The preponderance of the evidence is against the claim for a rating in excess of 20 percent for a right ankle disability, to include on an extraschedular basis. Accordingly, the appeal in the matter must be denied. ORDER A rating in excess of 20 percent for a right ankle disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs