Citation Nr: 1333564 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-30 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for left ankle fracture, status post-operative five times with surgical fusion associated with osteoarthritis, for the period from February 1, 2006 to October 18, 2006. 2. Entitlement to an initial evaluation in excess of 30 percent for left ankle fracture, status post-operative five times with surgical fusion associated with osteoarthritis, for the period on or after October 18, 2006. 3. Entitlement to a separate, compensable evaluation for scars of the left ankle. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1984 to June 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO, among other things, granted service connection on a secondary basis for the left ankle disability and assigned an initial evaluation of 10 percent, effective from January 27, 2005. In an August 2007 rating decision, the RO granted an earlier effective date for service connection for the left ankle disability of July 7, 2003, as well as a temporary total evaluation from October 5, 2005 to February 1, 2006 for a period of convalescence following surgery; a 20 percent evaluation was assigned thereafter. In a March 2011 decision, the Board denied the claim for an effective date earlier than July 7, 2003 for service connection and increased the initial evaluation of the left ankle disability to 20 percent for the entire period prior to the period of convalescence (implemented in a rating decision that same month); the issue of entitlement to an initial evaluation in excess of 20 percent for the time period following the period of convalescence, to include consideration of whether a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was warranted, was remanded for additional development. In addition, this Board decision granted service connection for an acquired psychiatric disorder also on appeal (implemented in the March 2011 rating decision; assigned an initial evaluation of 50 percent, effective from August 13, 2003). In an October 2011 rating decision, the Agency of Original Jurisdiction (AOJ) increased the initial evaluation of the left ankle disability to 30 percent under Diagnostic Code 5270, effective from October 18, 2006; the 20 percent evaluation for the period from February 1 to October 18, 2006 under Diagnostic Code 5271 remained undisturbed. While the Veteran has been granted a rating increase during the pendency of his appeal, this evaluation does not represent the highest possible benefit, and therefore, the issue as recharacterized above, remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In a May 2012 rating decision, the RO granted a TDIU, effective from August 13, 2003. The Veteran has not expressed disagreement with the decisions as to the issues of service connection for an acquired psychiatric disorder or TDIU to date (i.e., the initial evaluation or effective date assigned, as applicable), and as such, these issues are not before the Board at this time. The development requested in the March 2011 remand has been completed, and the case has since been returned to the Board for appellate review. A review of the Virtual VA and VBMS electronic claims files does not reveal any additional documents pertinent to the present appeal. In March 2011, the Board referred the issue of entitlement to a clothing allowance, as raised by the Veteran's August 2010 written inquiry received by the Board in August 2010. On review, it does not appear that this issue was adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. For the period from February 1, 2006 to October 18, 2006, the Veteran's left ankle disability was manifested by ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. 2. Throughout the pendency of the entire appeal, the Veteran's left ankle disability has been manifested by surgical fusion of the left ankle at zero degrees of dorsiflexion and zero degrees of plantar flexion, but not ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 3. From October 23, 2008, the Veteran has three painful scars of the left ankle. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent evaluation, but no higher, for left ankle fracture, status post-operative five times with surgical fusion associated with osteoarthritis, have been met for the period from February 1, 2006 to October 18, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5270 (2012). 2. The criteria for an initial 30 percent evaluation on or after October 18, 2006 for left ankle fracture, status post-operative five times with surgical fusion associated with osteoarthritis, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5270 (2012). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 20 percent evaluation for scars of the left ankle have been met from October 23, 2008. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The claim on appeal arises from the Veteran's disagreement with the evaluation assigned in connection with the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability evaluation) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA notification requirements with regard to this claim is unnecessary. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. Moreover, the Veteran has not identified any available, outstanding records that are relevant to the claim decided herein, to include any such private records that he has authorized VA to obtain. The record also includes written statements provided by the Veteran and his representative. The record reflects that the Veteran was approved by VA for private orthopedic treatment in August 2005. This private provider performed the October 2005 fusion surgery, as noted in VA treatment records. See, e.g., September 2006 VA treatment record noting surgery through Carolinas Medical Center. In response to this reported information, the AOJ sent letters to the Veteran in April 2011 and February 2012 requesting that he identify and provide completed authorization forms for all private health care providers. The letters each included blank VA Form 21-4142s, Authorization and Consent to Release Information. In a March 2012 (dated) response, the Veteran noted that his treatment records were at two VA Medical Centers but did not provide a completed authorization form for his non-VA, private orthopedic doctor. As such, the Board finds that the AOJ fulfilled VA's duty to assist in this regard. In response to the March 2011 Board remand, the Veteran was afforded a VA examination in May 2011, in addition to the December 2005 VA examination for service connection. The Board finds that the examination was adequate, in that it was conducted by a medical professional who reviewed the claims file, solicited history from the Veteran, and performed a thorough examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Based on the foregoing, the Board finds that VA has complied with the VCAA notification and assistance requirements; all necessary development has been accomplished, and there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and 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). However, as in this case, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. In this case, as explained below, a uniform rating is warranted. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to higher evaluations for his service-connected left ankle fracture, status post surgical fusion, currently assigned a 20 percent evaluation pursuant to 38 C.F.R. § 4.71a for the period from February 1, 2006 to October 18, 2006 (Diagnostic Code 5271) and a 30 percent evaluation thereafter (Diagnostic Code 5270). As discussed in detail above, these evaluations follow a period of post-surgical convalescence and are the remaining appellate issues before the Board. Under Diagnostic Code 5270, a 20 percent evaluation is warranted for ankylosis of the ankle in plantar flexion less than 30 degrees. A 30 percent evaluation is warranted for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent evaluation is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Under Diagnostic Code 5271, a 20 percent evaluation is warranted for marked limitation of motion of the ankle. Under Diagnostic Code 5272, a 20 percent evaluation is warranted for ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. Under Diagnostic Code 5273, a 10 percent evaluation is warranted for malunion of the os calcis or astragalus with moderate deformity. A 20 percent evaluation is warranted for malunion of the os calcis or astragalus with marked deformity. Under Diagnostic Code 5274, a 20 percent evaluation is warranted for astragalectomy. In addition, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must consider additional functional impairment beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to pain (and painful motion), weakness, fatigability, and incoordination - assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. As discussed in detail in the March 2011 Board decision, the Veteran has a history of left ankle problems, including numerous surgical procedures, ongoing complaints of pain, limitation of motion in the joint, osteoarthritis, and a marked deformity of the calcaneus bone (os calcis). In August 2005, the Veteran was approved by VA for treatment by a private orthopedist. Thereafter, VA treatment records show that the Veteran underwent left ankle arthrodesis (tibiotalar and subtalar fusion) in October 2005 through his private provider. See, e.g., October 2006 and January 2007 VA treatment records; September 2006 CT scan report. It appears that this was the second fusion procedure on the left ankle. See June 2003 private treatment record (noting history of prior arthrodesis). During the December 2005 VA examination, the Veteran reported that he had undergone five surgeries, with the most recent being two months prior; he was not supposed to move his ankle and reported actually not being able to move the ankle because of the fusion. At that time, range of motion measurements could not be taken due to the Veteran's ankle brace, which he was supposed to wear all of the time. A March 2006 VA treatment record shows that the Veteran reported that he was able to wear shoes for the first time in years. An August 2006 VA treatment record shows that the Veteran reported a good healing process from the surgery, but complained of an onset of pain in the area of the screws. October 2006 and January 2007 VA treatment record shows that the Veteran needed a rocker bottom shoe to assist with ambulation, as his ankle had no dorsiflexion; his recent surgical history was noted. The Veteran was afforded a VA examination in May 2011, during which he complained of constant symptoms in the left ankle, including swelling and difficulty walking or standing more than ten minutes; cold weather made his symptoms worse. He reported that the most recent fusion procedure helped, and he was not currently wearing a brace. He reported no history of frequent hospitalization, aside from the surgeries. On physical examination, the examiner noted that the left ankle was fused in neutral with respect to dorsiflexion, plantar flexion, inversion, and eversion at zero degrees, with a resulting absent range of motion. The examiner noted the deformity of the calcaneus bone present on prior radiographic reports, as noted above. The examiner also noted that new x-rays showed that the Veteran had undergone fusion, and ankle plate and screws were present, with no hardware failure noted. The impression was left ankle fracture, left ankle fusion, multiple surgical procedures done on left ankle. The examiner described the Veteran's left ankle disability as severe and indicated that the Veteran's knee and ankle combined would preclude him from jobs requiring more than occasional walking and standing, but would not limit him in a sedentary occupation. Parenthetically, the Board notes that it appears that the Veteran reported a history of left ankle surgeries to the May 2011 VA examiner, to include a most recent fusion surgery four years prior (which would be approximately 2007). On review, it appears that such a reference was actually to the October 2005 fusion surgery; however, to the extent the Veteran was indeed referring to a separate surgical procedure, this report is inconsistent with the remainder of the medical history of record. He also did not provide authorization to VA to obtain any records from his private orthopedic provider to show otherwise. In any event, the Board has considered the effects of the October 2005 surgical fusion and ongoing complications in reaching the rating assigned based on the evidence of record. A May 2012 VA treatment record shows an unremarkable finding for other foot deformities bilaterally, with a left foot assessment of the left ankle fusion. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 30 percent evaluation for his left ankle disability for the period from February 1, 2006 to October 18, 2006 under Diagnostic Code 5270. In this regard, the Board notes that following the October 2005 arthrodesis procedure, the record shows that the Veteran's left ankle was continuously fused into place. See, e.g., September 2006 CT scan report. The Veteran credibly reported that he was unable to move his ankle due to the fusion at the time of the December 2005 VA examination, and the record does not suggest that this status somehow changed for the remainder of this staged period. See Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (Veteran competent to report as to symptoms he experiences through his senses, such as an inability to move his ankle, and their history). While the Veteran did report being able to wear shoes for the first time in many years in March 2006, the Board finds that this fact alone is not sufficient to show sustained improvement in the Veteran's disability in this post-operative status, as he continued to experience ongoing pain, and the ankle remained fused. Notably, the Veteran's symptomatology appears to have been mostly consistent following his October 2005 surgery, up to and after the October 2006 VA treatment record showing no dorsiflexion. Based on consideration of the relevant medical history and demonstrated symptomatology in this case, the Board finds that such resulting functional impairment is consistent with the criteria contemplated under Diagnostic Code 5270 for ankylosis of the ankle in dorsiflexion between 0 and 10 degrees. Therefore, the Board finds that the Veteran's left ankle disability is more appropriately rated under Diagnostic Code 5270 for the period from February 1, 2006 to October 18, 2006, consistent with the evaluation assigned thereafter. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (assignment of a proper diagnostic code "completely dependent upon the facts of a particular case"); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (a change in a diagnostic code by a VA adjudicator should be specifically explained). Nevertheless, the Board finds that an initial evaluation in excess of 30 percent is not warranted for the Veteran's left ankle disability at any point during the pendency of the appeal. The Veteran has not been shown to have ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity under Diagnostic Code 5270. In this regard, the May 2011 VA examiner reported that the Veteran's left ankle is permanently fixed in the neutral position, to include with respect dorsiflexion and plantar flexion. As such, the ankle cannot be ankylosed at more than 40 degrees of plantar flexion or more than 10 degrees of dorsiflexion for purposes of meeting the rating criteria for a 40 percent evaluations. In addition, the record does not suggest, nor does the Veteran contend, that there was abduction, adduction, inversion, and/or eversion deformity of his left ankle, to include during the May 2011 VA examination. The May 2012 VA treatment record shows no foot abnormalities as well. Moreover, while the Board acknowledges the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, discussion of additional functional impairment is inapplicable in this case, as the Veteran's ankle is ankylosed. In considering the other potentially applicable diagnostic codes, the Board notes that Diagnostic Code 5270 provides the only schedular criteria for rating the ankle higher than 30 percent. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In addition, the Rating Schedule generally prohibits pyramiding (i.e., evaluating the same disability under different diagnostic codes), and the Court has held that pyramiding is disfavored "unless the regulation expressly provides otherwise." Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); 38 C.F.R. § 4.14. The Board finds that the Veteran's surgical ankylosis, arthritis, and marked deformity of the calcaneus bone, as well as the resulting functional impairment are contemplated in the current evaluation assigned; the record does not reflect additional separate findings or disability in this regard. Moreover, the record does not reflect that the Veteran underwent an astragalectomy. In summary, a separate evaluation for the left ankle disability by analogy or otherwise is not appropriate at this time, to include consideration of such based on the change in diagnostic codes for the first staged rating period. 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. Therefore, the Board finds that the preponderance of the evidence is against a finding for an initial evaluation in excess of 30 percent at any point during the appeal period for the Veteran's left ankle disability. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied in this regard. Gilbert, 1 Vet. App. 49 (1990). The issue of whether a separate compensable rating is warranted for the Veteran's scars associated with the left ankle is also raised by the record. As an initial matter, the Board notes that the rating criteria for scars were amended, effective from October 23, 2008. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates. See 73 Fed. Reg. 54708 (September 23, 2008); 38 C.F.R. § 4.118. These changes went into effect during the pendency of the Veteran's claim; however, as explained below, application of the revised criteria is applicable in this case. The revised version of Diagnostic Code 7804 provides that a 10 percent evaluation is warranted for one or two scars that are unstable or painful; a 20 percent evaluation is warranted for three or four scars that are unstable or painful; and a 30 percent evaluation is warranted for five or more scars that are unstable or painful. During the May 2011 VA examination, the Veteran had three tender scars: one on the medial aspect of the ankle (linear, measuring 5 centimeters by .3 centimeters); one on the lateral aspect of the ankle running superiorly/inferiorly (linear, measuring 13 centimeters by .3 centimeters); and one on the lateral aspect of the foot (curvilinear, measuring 16 centimeters by .2 centimeters to .4 centimeters in width). This VA examination and the remainder of the record does not show evidence of other findings or abnormalities due to the Veteran's left ankle scars, to include any reports of pain or other symptoms related to the scars. Indeed, this examination report is the first evidence of scars and related symptomatology of record. Based on these findings and the Veteran's surgical history (to include the October 2005 surgical fusion), the Board resolves reasonable doubt in the Veteran's favor and finds that a 20 percent evaluation is warranted under Diagnostic Code 7804 for three painful scars of the left ankle from October 23, 2008, the earliest permissible effective date under the current rating criteria. The Board has also considered whether a higher or separate evaluation for scars is available under the remaining Diagnostic Codes 7801 through 7805, to include the criteria in effect prior to October 23, 2008; however, the evidence does not support an assignment of such an evaluation at this time. The Board is mindful that under the amputation rule, the combined rating for disabilities of an extremity shall not exceed the rating for an amputation at the elected level, were amputation to be performed. For example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, according to 38 C.F.R. § 4.71a, Diagnostic Code 5165. Therefore, although the criteria are met for a 30 percent evaluation for the left ankle disability and for a 20 percent rating for left ankle scars, the combined evaluation for the left lower extremity below the knee shall not exceed a 40 percent evaluation, if such a situation arises. 38 C.F.R. § 4.68. The Board has also considered the lay evidence of record regarding the Veteran's observable left ankle symptoms, to include the Veteran's reports during VA examinations and his limited written submissions, in deciding this case. See Layno, supra; Buchanan, supra. However, even affording this lay evidence full competence and credibility, such evidence does not support evaluations other than those currently assigned. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's left ankle disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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 Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The current evaluation contemplates the Veteran's primary complaints of pain and swelling, as well as the functional impairment due to the surgical ankylosis, as discussed above. In addition, while the record reflects the history of five surgeries for the Veteran's left ankle (prior to and over the course of his claim), the most recent of record in October 2005, the May 2011 VA examiner noted that these surgeries were the only hospitalizations of record. The Board finds that this surgical history does not demonstrate a level of frequency that indicates that the Veteran's left ankle disability required frequent hospitalizations. With regard to employability, the May 2011 examiner also determined that while the Veteran would be unable to return to his former occupation due to his left knee and ankle disabilities, he was capable of sedentary employment when considering only his orthopedic disabilities. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left ankle disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra. ORDER A 30 percent initial evaluation for left ankle fracture, status post-operative five times with surgical fusion associated with osteoarthritis, for the period from February 1, 2006 to October 18, 2006 is granted under Diagnostic Code 5270, subject to the laws and regulations governing the payment of monetary benefits (including 38 C.F.R. § 4.68, as appropriate). Entitlement to an initial evaluation in excess of 30 percent for left ankle fracture, status post-operative five times with surgical fusion associated with osteoarthritis, is denied for the entire appeal period. (CONTINUED ON NEXT PAGE) Entitlement to a separate 20 percent evaluation for scars of the left ankle is granted for the period from October 23, 2008, subject to the laws and regulations governing the payment of monetary benefits (including 38 C.F.R. § 4.68, as appropriate). ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs