Citation Nr: 1334244	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-17 236	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for post operative ankylosis, favorable position, right ankle.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Hubers, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1971 to November 1977. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.


FINDING OF FACT

The Veteran's current right ankle disability has not been manifested by ankylosis in plantar flexion or dorsiflexion, by malunion of the os calcis or astragalus, or by astragalectomy at any time during the appeal period.


CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for post operative ankylosis, favorable position, right ankle have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

For increased-rating claims, section 5103(a) requires the Secretary to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009).  The notice should also inform the Veteran with respect to how disability ratings and effective dates are assigned.  Id.  

In the instant case, notice was provided to the Veteran in July 2008, prior to the initial adjudication of his claim in October 2008.  In light of the subsequent court decision in Vazquez-Flores, updated notice was provided in July 2009.  The updated notice was provided prior to the March 2010 readjudication of the Veteran's claim in a Statement of the Case (SOC).  The content of the notice letters fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.

VA must also make reasonable efforts to assist the appellant 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 claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).

VA satisfied its duty to seek relevant records.  VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO associated with the claims file the Veteran's service treatment records, VA treatment records, and private medical records.  The Veteran has not identified any treatment records aside from those that are already of record.  Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.  

VA also satisfied its duty to obtain a medical examination.  In September 2008, VA provided the Veteran a medical examination with respect to the current status of his right ankle disability.  The examination is adequate as the VA examiner reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided an adequate discussion of relevant symptomatology.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to entitlement to an increased rating for a right ankle disability is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

II.  Analysis

Under U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  However, the law only requires that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).

In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the 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 evaluations.  See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated since the most recent rating decision.  Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The factors involved in evaluating and rating disabilities of the joints include weakness, fatigability, incoordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45.  Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).




Application of Criteria and Legal Principles to Veteran's Ankle Disability

The Veteran was initially granted entitlement to service connection for post operative ankylosis, favorable position, right ankle in December 1977, and was assigned a single 20 percent disability rating.  The Veteran's right ankle disability is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271.  This is the maximum schedular rating under this diagnostic code.  The Board must also consider, however, all other potentially applicable diagnostic codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).

Diagnostic Code 5270 applies to ankylosis of the ankle.  Ankylosis is the "immobility and consolidation of a joint due to disease, injury, surgical procedure."  Lewis v. Derwinski, 3 Vet. App. 259 (1992).  Under Diagnostic Code 5270, a 20 percent evaluation is assigned for ankylosis of the ankle in plantar flexion less than 30 degrees.  A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 and 40 degrees or ankylosis in dorsiflexion between 0 and 10 degrees.  38 C.F.R. § 4.71a.  A 40 percent rating may be assigned where the ankylosis in plantar flexion is at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity.  Id.

The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion.  38 C.F.R. § 4.71, Plate II.

Initially, the Board notes that neither the evidence previously of record nor the evidence recently submitted to or obtained by the Board contains any indication that there is ankylosis of the Veteran's right ankle.  Moreover, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the regulations pertaining to functional loss due to pain, weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, painful motion with joint or peri-articular pathology, and actually painful, unstable, or malaligned joints, due to healed injury, i.e., 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for application.  Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (holding that, although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because a higher schedular rating required ankylosis).  Thus, based on the following evidence, there is no basis for a higher rating under Diagnostic Code 5270.

The Veteran underwent two ankle surgeries while in service, both in 1976.  The first surgery, involving multiple drill holes, was an attempt to relieve chronic ankle pain.  The second, in December 1976, was a triple arthrodesis.  The Veteran's service treatment records and subsequent examinations consistently revealed decreased range of motion, but not immobility.  See, e.g., August 1977 Medical Board Narrative Summary ("The range of motion of the patient's right ankle indicates that he is able to dorsiflex the right ankle fifteen degrees, plantar flex thirty-five degrees."); June 1993 VA Disability Evaluation Examination ("ROM is reduced with dorsiflexion 10 degrees, plantar flexion 25 degrees, inversion 0 degrees, and eversion less than 10 degrees."); April 1995 VA Examination ("Ankle motion on the right is 15 degrees dorsiflexion, 45 degrees plantar flexion.").  

Though these earlier medical records support a 20 percent rating and no more, the Veteran's current condition is of primary concern.  The most recent examination of the Veteran's right ankle indicates that, despite limited motion, the Veteran does not have ankylosis in dorsiflexion and plantar flexion.  See September 2008 Medical Report (noting dorsal flexion of 5 degrees and plantar flexion of 35 degrees).  Subsequent treatment records support the finding that the right ankle is not ankylosed in plantar flexion or in dorsiflexion.  See January 2009 treatment records from BMC NAVSUPPACT (noting that, with respect to right ankle, "[a]ctive motion was decreased to flexion and extension").  Also, there is no record evidence nor has there been any claim by the Veteran that he suffers from abduction, adduction, inversion, or eversion deformity.  Thus, the Veteran does not satisfy any of the criteria for a rating in excess of 20 percent under Diagnostic Code 5270, specifically ankylosis in plantar flexion, ankylosis in dorsiflexion, or ankylosis of the ankle with abduction, adduction, inversion or eversion deformity.

While the Veteran has claimed that he experiences pain, stiffness, and edema after prolonged walking, see May 2012 Statement of the Veteran's Representative, the Veteran is already receiving the maximum disability rating available under Diagnostic Code 5271 pertaining to limitations on range of motion of the ankle.  The physician who provided the September 2008 evaluative examination noted that the Veteran was able to climb stairs, to walk on his heels, and to walk on his tiptoes with pain, which observations indicate that the Veteran's symptoms do not more closely approximate the rating criteria under Diagnostic Code 5270 which requires ankylosis, i.e. immobility.  See September 2008 Medical Report; see also January 2009 treatment records from BMC NAVSUPPACT (documenting range of motion in the ankle and ability to ambulate despite some tenderness, swelling, and pain).  The functional limitations due to the Veteran's pain, stiffness, and edema warrant neither a higher rating on this record nor a remand to evaluate the extent of any functional impairment caused by those symptoms because the Veteran already receives the maximum disability rating for limitation on range of motion.  Johnston, 10 Vet. App. at 85.

In sum, the Veteran's symptoms have not more nearly approximated, at any point during the appeal period, ankylosis of the left ankle in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees, or in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity warranting a 30 or 40 percent rating under Diagnostic Code 5270, the only diagnostic code applicable to the ankle with criteria for higher schedular ratings.  

The other diagnostic codes applicable to the ankle, 5272 through 5274, which address ankylosis of subastralgar or tarsal joint, malunion of os calcis, and astragalectomy, provide for maximum 20 percent ratings.  The evidence does not reflect that the Veteran has ankylosis of subastralgar or tarsal joint, malunion of os calcis, or astragalectomy.  Moreover, the Rating Schedule generally prohibits pyramiding, i.e., evaluating the same disability under different diagnostic codes, 38 C.F.R. § 4.14, and the Court has held that pyramiding is disfavored "unless the regulation expressly provides otherwise."  Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010).  The Board therefore finds that a rating under the Diagnostic Codes 5272 through 5274 is warranted neither by the evidence nor applicable law.

The Board acknowledges that staged ratings would be appropriate if at any point during the appeal period evidence reflected that the Veteran's symptoms more nearly approximated the criteria for any higher rating.  The Veteran's symptoms have not, however, more closely approximated the criteria for any higher rating at any time during the appeal period.  

For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's right ankle symptoms do not more nearly approximate the criteria for any higher or separate schedular rating at any point during the appeal period.  The benefit-of-the-doubt doctrine is, therefore, not applicable, and the claim of entitlement to an increased schedular rating for a right ankle disability, currently evaluated as 20 percent disabling must be denied.  See 38 C.F.R. §§ 3.102, 4.3, 4.7.

Extraschedular Considerations

Finally, in exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, in order to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating.  Id.  

In the present case, the Veteran's reported symptoms include pain, stiffness, weakness, and limited motion.  The schedular criteria specifically contemplates limitation of motion.  Caselaw, which was applied above, contemplates the effect of pain, stiffness, weakness, and flare-ups.  As all of the Veteran's symptoms are either explicitly contemplated by the applicable Diagnostic Code or have been considered by the Board with respect to each of the potentially applicable Diagnostic Codes as required by the caselaw, the Board finds the schedular criteria are adequate.  

Also, while the evidence does provide some indication that the Veteran's occupational functioning is slightly impaired due to his right ankle disability, the medical examiner specifically opined that the Veteran would be able to work if his mental health issues were successfully treated.  See September 2008 Medical Report.  Also, the Veteran was successfully employed for many years subsequent to his military service despite the service-connected right ankle disability and, as reflected by the continued evaluation of 20 percent and the medical records reviewed above, his right ankle disability has not significantly worsened since that time.

For these reasons, the Board finds by a preponderance of the evidence of record that the Veteran's right ankle disability does not interfere with his occupational functioning to an extent that is not contemplated by the schedular rating criteria.  

The Board further observes that, even if the available schedular evaluation for the disability were to be found inadequate, the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria.  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.  The evidence is not in equipoise and the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. at 53-56.






ORDER

Entitlement to a disability rating in excess of 20 percent for post operative ankylosis, favorable position, right ankle is denied.



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs