Citation Nr: 1333436	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO. 09-40 664	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to an increased rating in excess of 30 percent for a service connected left ankle disability.

2. Entitlement to service connection for tinnitus.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	AMVETS


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1983 to September 1987.

This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2008 and December 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In the September 2008 decision, the RO denied an increased rating in excess of 30 percent for a left ankle disability, and in the December 2009 decision the RO denied service connection for tinnitus. The Veteran perfected appeals from both rating decisions individually, and they have been merged for the purposes of Board review.

The Board finds that the record raises an inferred claim for TDIU. In order for a TDIU claim to be raised by inference, a claimant must submit evidence of a medical disability, make a claim for the highest rating possible, and submit evidence of unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Further, where evidence of unemployability is submitted in connection with the appeal of an assigned disability rating, a claim for TDIU will be inferred as "part and parcel" of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran has made numerous statements indicating that his ankle disability has rendered him unable to do his job, with the most recent being during his March 2011 VA examination. Reading his statements liberally, the Board finds a claim for a TDIU has been raised and is under its jurisdiction. As such, the issue has been added to the title page.

The Virtual VA and VBMS electronic claims files associated with the Veteran's claims have been reviewed and all relevant evidence therein taken into account.

The issues of entitlement to service connection for tinnitus and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's left ankle disability is manifested by joint laxity, lateral instability, the need for a brace, stiffness, locking, weakness, incoordination, and decreased range of motion due to pain after repetitive motion and during flare-ups.


CONCLUSION OF LAW

The criteria for a disability rating of 40 percent, but no higher, for a left ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.41, 4.45, 4.71a, Diagnostic Code 5262 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veteran's Claims Assistance Act of 2000 (VCAA)

VA has a duty to provide claimants with notice and assistance in the development of their claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 (2013). 

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in response to the Veteran's claim for an increased rating for his left ankle disability in July 2008, prior to the initial unfavorable adjudication in September 2008. The letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in July 2008 and March 2011. The examinations are adequate because the examiners considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examinations, and conducted thorough medical examinations of the Veteran in relation to the applicable rating criteria. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claim for a rating in excess of 30 percent for a left ankle disability. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

In the September 2013 VA Form 646, Statement of Accredited Representative in Appealed Case, the Veteran's representative argued that the Veteran's disability had worsened, and quoted several statements by the Veteran regarding his ankle disability. Notably, however, all of the Veteran's contentions submitted in the VA Form 646 were made prior to the Veteran's March 2011 VA examination. In fact, it was those statements that triggered the reexamination request by the RO.  The Veteran has not made additional statements since the examination that his condition has become worse. As there is no indication that the March 2011 examination does not accurately reflect the Veteran's current state of disability, the Board finds that the 2011 examination is adequate.  

In the October 2013 Informal Hearing Presentation, the Veteran's representative argued that a new VA examination is necessary because it has been two years since the last examination.  No further arguments were made as to the reason a new examination was required.  The Board notes that the mere passage of time since an otherwise adequate examination does not obligate VA to provide another examination simply as a matter of course.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  As neither the Veteran, nor the record, has indicated an increase in severity since the last examination, the Board finds that there is no reason to further delay a decision by remanding for a new examination.

Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Increased Rating

A. Schedular Ratings

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As such, the relevant temporal focus for increased rating claims is on the evidence concerning the state of the disability from the time period one year before the claim was filed until a final decision is made. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

The Veteran contends that he is entitled to an increased rating in excess of 30 percent. Specifically, he contends that he must constantly wear a brace on his left ankle, that he experiences pain, swelling, tenderness and severe flare-ups, that he has ankylosis, and that his disability is sufficient to establish nonunion of the fibula.

The Veteran's disability is currently rated at a level of 30 percent under Diagnostic Code 5262, impairments of the tibia and fibula. A rating of 30 percent under Diagnostic Code 5262 is warranted when there is malunion of the tibia or fibula with marked knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. A higher rating of 40 percent is warranted when there is nonunion of the tibia or fibula and loose motion requiring a brace. Id.

A review of the evidence of record indicates that the Veteran's current disability picture more nearly approximates the level of disability contemplated by a rating of 40 percent. There is no evidence of record showing that the Veteran has nonunion of either the tibia or fibula. However, in both his July 2008 and March 2011 VA examinations, the examiners found the Veteran had persistent ligamentous laxity in his left ankle, along with additional ligament damage. Both noted that the Veteran required a CAM walker brace, and the March 2011 examiner also noted the Veteran uses a cane. VA treatment records and examinations from July 2008 forward corroborate the Veteran's continued use of a CAM walker brace. Thus, based on the evidence, the Veteran has met one of the two 40 percent rating criteria.

In analyzing further whether the Veteran's disability more nearly approximates the higher rating criteria, the Board must also consider functional loss. See DeLuca v. Brown, 8 Vet. App. 202, 207 (1995); 38 C.F.R. §§ 4.40, 4.45. For the purposes of evaluating functional loss of the ankle, normal dorsiflexion (raising the front of the foot) is to 20 degrees, and normal plantar flexion (lowering the front of the foot) is to 45 degrees. See 38 C.F.R. § 4.71, Plate II. During the March 2011 VA examination, the examiner found that the Veteran's left foot had dorsiflexion to 0 degrees (i.e., a complete absence of dorsiflexion) and plantar flexion to 49 degrees. On repetitive motion, the Veteran's left foot plantar flexion was reduced to 30 degrees due to pain. Objective pain on motion was noted during the range of motion testing. Further, the examiner noted the following symptoms: lateral instability, pain, stiffness, weakness, incoordination, decreased speed of motion, locking, effusions, inflammation characterized by warmth, redness, swelling and tenderness, and severe weekly flare-ups. Substantially similar symptoms were noted by the July 2008 examiner. This represents significant functional loss.

There is also lay evidence concerning functional loss. The Veteran has made numerous lay statements in which he has reported that his ankle disability prevents him from either standing for more than a few minutes at a time or from walking more than a few yards at a time, which significantly interfere with his work as a chiropractor and in interacting with his family. He has also reported having frequent flare-ups, during which the pain is so severe he cannot use his left ankle at all. He also reported wearing a special brace at night to keep his ankle in a neutral position.

Lay statements from a co-worker, a neighbor, the Veteran's wife, and his child are also of record. All of these statements attest to the fact that it is now necessary for the Veteran to constantly wear a brace on his left ankle, and that even with it his mobility is severely limited due to the pain. The statements corroborated the Veteran's assertions that his left ankle disability prevents him from walking even short distances and from standing for more than several minutes at a time. The Board finds this lay evidence to be competent as it all testifies to lay observable symptoms, and there is nothing in the record to indicate that any of the statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that the competent lay and medical evidence of record establishes that the Veteran does have additional functional loss due to pain on use and on repetitive motion, fatigue, weakness, incoordination, and other factors. See DeLuca, 8 Vet. App. at 207; 38 C.F.R. §§ 4.40, 4.45.

Although the Veteran does not have nonunion of the tibia or fibula as normally required for a 40 percent rating, the Board finds that, in light of the loose movement, need for a brace, and the functional loss due to pain, weakness, fatigability and incoordination, the Veteran's current disability picture more nearly approximates a rating of 40 percent. 38 C.F.R. §§ 4.3, 4.7.

In deciding this case, the applicability of Diagnostic Code 5270, ankylosis of the ankle, was considered. 38 C.F.R. § 4.71a, Diagnostic Code 5270. For VA purposes, ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. Dorland's Illustrated Medical Dictionary 94 (32d ed. 2012). The competent medical evidence of record shows that, despite have no dorsiflexion, the Veteran maintains plantar flexion, and overall movement in the ankle.  Therefore, the ankle is not fixed in plantar flexion of more than 40 degrees or in dorsiflexion of more than 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Further, the Veteran would not be eligible for a rating higher than the 40 percent conferred herein if Diagnostic Code 5270 were applied. All other potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are also not warranted as the Veteran has had a relatively stable level of symptomatology throughout the appeal. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505.
B. Extraschedular Rating

Consideration has also been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. 

If not, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If an exceptional disability picture, including such factors as marked interference with employment and frequent periods of hospitalization, exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination on whether justice requires an extraschedular rating. Id.

Here, the criteria are adequate, as they fully contemplate the Veteran's reported symptoms, including loose motion, the necessity of wearing a brace, and his demonstrated functional loss. Therefore, extraschedular evaluation is not appropriate, and need not be further discussed. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111.

ORDER

Entitlement to an increased rating of 40 percent, and no higher, for a left ankle disability is granted, subject to the laws and regulations controlling the award of monetary benefits.

REMAND

The Board must remand the claim for further notice and a new VA examination.

The October 2009 VA audiological evaluation is inadequate. The Veteran has stated and his DD-214 reflects that he served in the Marine Corps as a mortar man. Based on this, the Veteran had noise exposure during service. The Veteran has also consistently stated that his tinnitus began in service and has continued since. It is not clear whether the VA examiner took these lay statements into consideration when rendering an opinion as to whether the Veteran's tinnitus was at least as likely as not caused by or aggravated in service. 

Additionally, the October 2009 examiner indicated that "tinnitus is a symptom, not a disease." This is inaccurate, as VA recognizes tinnitus as a disability for which service connection can be granted. Furthermore, the examiner stated that an opinion could not be rendered without resorting to speculation, but did not provide a supporting rationale for that conclusion. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). Therefore, the Board must remand for a new audiological examination and opinion with respect to the Veteran's claim of tinnitus.

As discussed above, the Board finds an inferred claim for TDIU is raised by the record based on the Veteran's complaints of an inability to perform his current job due to his service-connected left ankle disability. See Roberson, 251 F.3d at 1384; Rice, 22 Vet. App. at 453-54. He has received no notice regarding that claim and appropriate development has not been conducted. Therefore, the Board must remand the claim so proper notice can be provided and any necessary development undertaken, to include a medical opinion.

While on remand, efforts must be made to obtain any further treatment records identified and authorized for release by the Veteran.


Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he provide the requisite information.

2. After undertaking the development listed above to the extent possible, schedule the Veteran for a new audiological examination with an audiologist. The claims file should be made available to and reviewed by the examiner. A note that it was reviewed should be included in the examination report. After reviewing the claims file and examining the Veteran, the examiner should also answer the following question:

Is it at least as likely as not (a fifty percent probability or greater) that the disability was incurred or aggravated in service?

A detailed rationale supporting the examiner's opinion should be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. 382. In forming the opinion, the examiner should consider the Veteran's lay statements. 

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

3. Thereafter, readjudicate the issues on appeal, to include TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs