Citation Nr: 1331396 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-01 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable rating for right ankle arthritis and lower extremity compartment syndrome, prior to December 8, 2010. 2. Entitlement to an initial rating in excess of 10 percent for right ankle arthritis and lower extremity compartment syndrome, from December 8, 2010. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from November 1999 to September 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado which granted entitlement to service connection for right ankle arthritis with lower extremity compartment syndrome, effective October 15, 2008, and provided an initial noncompensable evaluation. In a January 2013 rating decision, the RO provided an increased 10 percent rating, effective December 9, 2010. The Veteran appeared and testified at a personal hearing in June 2013 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. The issue of entitlement to service connection for anxiety, to include as due to service-connected right ankle arthritis and lower extremity compartment syndrome has been raised by the record, 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. Prior to the promulgation of a decision in the appeal, the Veteran requested that his appeal for a rating in excess of 10 percent for his right ankle disability from December 8, 2010 be withdrawn. 2. The Veteran's statements regarding painful motion of the right ankle are credible. X-rays reveal degenerative changes of the right ankle. CONCLUSION OF LAW 1. The criteria for withdrawal of the appeal for a rating in excess of 10 percent for the Veteran's right ankle arthritis with lower extremity compartment syndrome have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2013). 2. The criteria for an initial 10 percent rating for right ankle arthritis with lower extremity compartment syndrome, prior to December 8, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development 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, and 3.326(a) (2013). Given the Board's favorable disposition of the claim for an initial compensable rating for right ankle arthritis with lower extremity compartment syndrome, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Withdrawn claim A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During his June 2013 hearing, and contained in the transcript of record, the Veteran explicitly stated that he wished to withdraw his claim for a rating in excess of 10 percent for his right ankle disability, from December 8, 2010. He clearly indicated that he only wished to appeal his noncompensable rating, for the period prior to December 8, 2010 and that he was satisfied with the 10 percent rating that was assigned for his right ankle after December 8, 2010. Because the Veteran has clearly indicated his wish to withdrawal the appeal for the period after December 8, 2010, there remains no allegation of errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Accordingly, the Board does not have jurisdiction to review this appeal and it is therefore dismissed. Increased Rating The Veteran contends that the symptoms of his right ankle arthritis and lower extremity compartment syndrome have remained constant since service, and that his disability warrants a 10 percent rating throughout the period on appeal. He complains of significant pain and weakness with walking, climbing stairs, and other physical endeavors. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10 (2013). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2013). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that a veteran "need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54 ). Traumatic arthritis is to be evaluated the same as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis is rated under 38 C.F.R. § 4.71a, DC 5003 (2013). Under DC 5003, the Schedule directs that degenerative arthritis that has been established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. When the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint affected by limitation of motion. 38 C.F.R. § 4.71a, DC 5003. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, warrants a 20 percent disability evaluation. Id. Diagnostic Code 5003 noted that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Limitation of motion of the ankle is rated under DC 5271. Under DC 5271, moderate limitation of motion of the ankle is rated as 10 percent disabling and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a , Plate II (2013). Functional loss, which is the inability to perform the normal working movements of the body within normal limits, specifically due to pain and weakness on motion, also is to be considered when ascertaining the severity of musculoskeletal disabilities. 38 C.F.R. §§ 4.40 , 4.45 and 4.59 (2013); see also DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The Veteran's service treatment records reveal that he injured his right leg during basic training. Thereafter, he frequently complained of right ankle pain and right lower extremity numbness/tingling with running. In 2004, the Veteran complained of right ankle pain after walking 1/4 mile. VA treatment records available in the claims file only date back to 2008. In September 2008, the Veteran complained of ongoing right ankle pain beginning in boot camp. He reported he participated in mandatory physical therapy through most of his service. He was diagnosed with exercise-induced compartment syndrome in 2004. He reported that he was unable to exercise, or even walk more than a few minutes without the return of pain. On examination he had a "good range of motion," and a bony prominence on the right medial malleolus. He had sensation to light touch. An x-ray revealed mild degenerative changes and a small bone island on the posterior aspect of the calcaneus. In January 2009, the Veteran was afforded a VA examination. He again complained of frequent severe pain with walking or exercise. He indicated he could only walk 300 feet before he would need to stop due to the pain. With severe enough pain, his leg will tingle. On physical examination, he had a protruding right medial malleolus. He also had tenderness to palpation over the right anterior tibialis musculature and muscles posterior to the tibia. He also had tenderness to the gastrocnemius and Achilles. His flexion was to 50 degrees, extension to 20 degrees. The examiner noted that the Veteran did not have pain following any of the movements, and that there was no change in active or passive range of motion following repetitive testing. In September 2010, the Veteran provided a statement that during his 2009 examination, he was obviously in pain during the range of motion testing. He reported that his face "immediately became flushed, his heart began to race, and [he] made several grunting noises." In December 2010, the Veteran again sought treatment for his painful right ankle. The physical therapist noted that the Veteran was able to ambulate on his own but that he "did appear to be in at least a mild amount of distress." He underwent an MRI, which revealed tendonosis, a possible torn tendon, and "discrete cystic structures adjacent to flexor halluces longus tendon at the level of the talus." On physical examination, the Veteran's right ankle had mild to moderate weakness in both invertors and evertors. He also had moderate right foot over pronation, which leads to an unstable ankle. He was assessed with right ankle degenerative joint disease with severe tendinitis, and right lower leg compartment syndrome. During his June 2013 hearing, the Veteran reported that during his 2009 VA examination he did not provide active range or motion. He stated that the examiner manually manipulated his ankle to determine the range of motion, and he stated that he was in significant pain during and after the range of motion testing. He reported that he had to miss a day of work following the examination due to the range of motion testing causing severe pain in his right ankle. The Veteran reported that his right ankle symptoms have been the same from 2008 to 2010. He has not been able to walk long distances, and that sometimes simply walking 20 feet is "excruciating." He reported using crutches when his symptoms flare-up to the point where he cannot use his right ankle. The Board finds the Veteran's statements regarding painful motion and decreased motion during flare-ups to be credible. He has consistently described increased pain, and decreased functionality after weight bearing for long periods of time or walking relatively short distances. His service treatment records included numerous notations of right ankle and leg pain. Initially he was unable to complete running requirements, but he did eventually complain of increased right ankle pain after walking only 1/4 mile in 2004. As there is x-ray evidence of arthritis, and the Board finds the Veteran's statements regarding painful motion and loss of range of motion during flare-ups, an initial rating of 10 percent is warranted under DC 5010 as contemplated by Deluca and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. Here, the Veteran has only requested a 10 percent rating, as during his hearing he noted that he "always pursued the 10 percent," and that he was not seeking a 20 percent or higher for his ankle ratings. Nevertheless, the Board also notes that the evidence of record does not support a rating in excess of 10 percent. The Veteran, on examination, has exhibited a full range of motion and he was noted to have a "good" range of motion during VA treatment. As such, there is no evidence of marked limitation of motion of his right ankle. See DC 5271. He also does not have right ankle ankylosis, subastragalar or tarsal joint ankylosis, malunion of the os calcis or astragalus, or an astragalectomy. See DC 5270, 5272-74. Lastly, there is no x-ray evidence of arthritic involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating episodes. As such, entitlement to an initial rating of 10 percent, and no higher, is warranted for the entire period on appeal (prior to December 8, 2010). Extraschedular In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis for his right ankle and leg disabilities. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extraschedular rating. 22 Vet. App. 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate. Higher ratings are available for more serious manifestations of the Veteran's disabilities considered herein, but the Veteran does not meet those criteria. It does not appear that the Veteran has an "exceptional or unusual" disability; and he appears to agree with his 10 percent rating. He also does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplate by the schedular criteria. He has complained of tingling of the shin during flare-ups of right ankle pain, but physical examination has not revealed any neurological disorders. He has indicated he lost a day of work due to the 2009 VA examination; however, from his description he does not frequently miss work due to his right ankle and leg disabilities, and some industrial impairment is contemplated by the 10 percent rating assigned. No extra-schedular referral is required. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, the Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Here, however, the Veteran has remained employed during the period on appeal. ORDER Entitlement to an initial rating of 10 percent, and no higher, for right ankle arthritis and lower extremity compartment syndrome, prior to December 8, 2010, is granted. The claim of entitlement to a rating in excess of 10 percent for right ankle arthritis and lower extremity compartment syndrome, from December 8, 2010, is dismissed. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs